Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – accident report privilege - law enforcement officer oath form – no evidence was presented to dispute that form was not properly sworn to by an authorized law enforcement officer – accident report privilege extends only to those involved in crash - no evidence in the record that witness who gave statement was involved in crash so her witness statement lawfully considered – witness statement and reasonable inferences establish probable cause of DUI --Petition denied.  Smith v. Dept. of Highway Safety and Motor Vehicles, No. 05-0006AP-88B (Fla. 6th Cir. App. Ct. May 5, 2005).








vs.                                                                                               Appeal No. 05-0006AP-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, Bradley David Smith (Smith), seeks review of the Final Order of License Suspension, entered December 16, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Smith’s driving privilege was properly suspended for a period of eighteen months for driving under the influence (DUI).  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Smith 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 October 31, 2004, at approximately 9:39 p.m., Deputy Kirby, of the St. Petersburg Police Department, responded to the scene of a two-car accident involving Smith.  Smith, who was injured, was taken to Bayfront Hospital for treatment.  Deputy Kirby observed two empty quarts of beer on the floorboard of Smith’s vehicle.  As set forth on page 2 of Deputy Kirby’s Offense Report/Arrest Narrative (Narrative), Mr. Smith told a witness, Sonya Martin, that he had been drinking and had fallen asleep at the wheel.  Deputy Kirby then stated in his Narrative:

I conducted part of my civil crash investigation at the scene and the other half at the hospital.  When I arrived at the hospital I asked Smith about the accident and he told me that he fell asleep at the wheel.  I observed the smell of alcoholic beverages, Smith had bloodshot eyes, dilated eyes, and slurred speech.  I informed Smith that I was done with my civil investigation and now I was conducting a criminal investigation.  I read Smith his Miranda warning from my State Attorney Miranda Card.  


Post-Miranda, Smith admitted he had consumed about 3 beers at a Halloween party. 


Smith could not remember where the two empty beer bottles in his car had come from.  Smith refused to submit to a blood test, as requested by Deputy Kirby, and was arrested for DUI.

            Before the hearing officer, Smith, represented by counsel, moved to invalidate the license suspension based on the improperly sworn or attested to Law Enforcement Oath Form, DDL-3, and the insufficiency/inconsistency of the Refusal Affidavit, DDL-8, in conjunction with the Alcohol Influence Report Form, DDL-7.  The hearing officer denied these motions.  Smith also objected to the admission into evidence of the Crash Report, Exhibit DDL-9, and a portion of the Narrative, Exhibit DDL-4, everything up to the point where Deputy Kirby stated that “now I was conducting a criminal investigation.”  As set forth in the Final Order, the hearing officer sustained the objections in that the Crash Report and statements made by Smith during the civil investigation were not considered.  The hearing officer went on to conclude that there was probable cause for the arresting officer to believe that Smith was in actual physical control of a motor vehicle.

            In his Petition, Smith argues that the Department erred in failing to invalidate the license suspension due to the improper Law Enforcement Officer Oath Form, the lack of evidence that Smith was in actual physical control of a motor vehicle, and the Refusal Affidavit presented insufficient/inconsistent evidence of a valid refusal.  Initially, the Court reiterates that the hearing officer was charged with determining, by a preponderance of the evidence, that Deputy Kirby had probable cause to believe that Smith was in actual physical control of a motor vehicle while under the influence, that Smith was lawfully arrested, that Smith refused to submit to a breath, blood, or urine test, and that Smith was informed that his driving privilege would be suspended for a period of 18 months for a second refusal.  See Fla. Stat. 322.2615(7)(b)1-4.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Smith’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            In addressing the first issue, the Court finds that the Law Enforcement Officer Oath Form considered by the hearing officer is sufficient.  Florida Statutes, § 117.10, provides that law enforcement officers are authorized to administer oaths when engaged in the performance of official duties.  While there is no designation that the notarizing signature is that of an officer, such as a badge number, the Court finds that there is no evidence to dispute that the Oath Form was not properly sworn to by an authorized law enforcement officer.  See e.g. State, Department of Highway Safety and Motor Vehicles v. Padilla, 629 So.2d 180, 181 (Fla. 3d DCA 1993)(reinstating administrative suspension where there was no evidence to dispute that the affiant was properly sworn before an authorized attesting officer); Department of Highway Safety and Motor Vehicles v. McGill, 616 So.2d 1212, 1214 (Fla. 5th DCA 1993)(reinstating license suspense when defective affidavits had no substantive or evidentiary significance and were not fatal to the state’s proof).    

            In addressing the second issue, the sufficiency of the evidence of actual physical control, the Court finds that, generally, statements of persons involved in a crash made to investigators at the accident scene, including admissions made by a driver, are privileged and inadmissible in administrative license suspension proceedings.[1]  (emphasis added).  See Fla. Stat. 316.044(4);[2] Nelson v. State, Department of Highway Safety and Motor Vehicles, 757 So.2d 1264, 1265 (Fla. 3d DCA 2000); Department of Highway Safety and Motor Vehicles v. Perry, 702 So.2d 294, 295 (Fla. 5th DCA 1997).  In this case, the hearing officer did exclude the Crash Report and portions of the Narrative that contained Mr. Smith’s statements given during the accident investigation, which neither party challenges on appeal.  Smith does challenge the hearing officer’s consideration of the witness statement by Sonya Martin in reaching the conclusion that there was probable cause to support Smith’s arrest. 

            The Court finds that there is nothing in the record to suggest that Ms. Martin was involved in the crash so as to exclude her witness statement.  See e.g. McTevia v. Schrag, 446 So.2d 1183, 1185 (Fla. 4th DCA 1984)(holding that testimony of motorist who had been following plaintiffs’ automobile was not subject to statutory privilege where the following motorist was not “involved” in the accident); Hoctor v. Tucker, 432 So.2d 1352, 1353-54 (Fla. 5th DCA 1983)(finding that statements of driver that rear-ended vehicle were privileged and inadmissible); Wiggen v. Bethel Apostolic Temple, 192 So.2d 796, 799 (Fla. 3d DCA 1966)(concluding that eyewitness statements to investigating officer were inadmissible under accident report privilege when eyewitness, who chased deceased into the path of bus, was “involved” in accident), rev’d on other grounds, 200 So.2d 797 (Fla. 1967).  Hence, the hearing officer lawfully considered Ms. Martin’s witness statement in concluding that there was probable cause that Smith was in actual physical control of a motor vehicle. 

            The Court finds that the witness statement, in addition to reasonable inferences that can be to be drawn from Deputy Kirby’s written observations and Smith’s post-Miranda statements, establish a prima facie case of probable cause.  See Department of Highway Safety and Motor Vehicles v. Silva, 806 So.2d 551, 554 (Fla. 2d DCA 2002)(explaining that probable cause is a conclusion often drawn from reasonable inferences)(citing Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 308 (Fla. 1st DCA 1995)).  The burden then shifted to Smith to rebut the Department’s prima facie case.  See Department of Highway Safety and Motor Vehicles v. Stewart, 625 So.2d 123, 124 (Fla. 5th DCA 1993)(agreeing that the suspendee has the burden to call all witnesses, including the arresting officer, in order to rebut the state’s prima facie case); Satter, 643 So.2d at 695 (finding that once hearing officer found that suspension for refusal was valid, driver then had the burden to show that she rescinded her refusal).  Smith did not call any witnesses nor present any evidence to rebut the Department’s case.  Accordingly, without reweighing the evidence, the Court finds that there is competent substantive evidence to support the hearing officer’s conclusion that Deputy Kirdy had probable cause to believe that Smith was in actual physical control of a motor vehicle.

            In addressing the final issue, whether the Department should have invalidated Smith’s license suspension due to an improper refusal affidavit, the Court initially notes that the Department failed to respond to this issue.  Nonetheless, the Court cannot automatically grant certiorari relief based solely on no response, but must evaluate the record in reaching the merits of whether the hearing officer’s conclusion of unlawful refusal is supported by the evidence.  See City of Kissimmee v. Grice, 669 So.2d 307, 308 (Fla. 5th DCA 1996)(holding that City’s failure to respond to order to show cause was not tantamount to default which automatically entitles the petitioner to his requested relief; court must still determine if petition is meritorious based on the record). 

            The Court finds that the Alcohol Influence Report Form and the Refusal Affidavit do present inconsistent information.  The Alcohol Influence Report Form states that Smith was first observed at 10:25 and was requested to take a breath/urine/blood[3] test at 11:53 p.m.  In completing the form, Deputy Kirby marked “no” the question “[w]ill you take the test?”  Then, after Smith was informed of the implied consent law, Deputy Kirby marked “no” to the question “[d]o you still refuse to take this test knowing your driving privilege will be suspended for a period of at least one year?,” indicating that Smith was not refusing.  Under his Statements, Deputy Kirby writes, “Smith refused to give blood and would not answer any more questions.”  The Breath Affidavit states that Smith was arrested at 11:53 p.m., but that Smith refused the blood test at 9:39 p.m.  The Narrative states that Smith was arrested at 9:39 p.m.   

            The Court finds that an arresting officer’s duty to properly complete paperwork is of utmost importance, particularly since the Department’s decision to sustain a license suspension is often based solely on documents generated at the time of a person’s arrest.  See Satter, 643 So.2d at 695 (stating that a hearing officer’s determination of a lawful arrest for DUI can be made based upon written documents generated at the time of arrest).  However, while the paperwork completed by Deputy Kirby has several inconsistencies, the hearing officer, as the trier of fact, was in the best position to evaluate the conflicting evidence and the Court cannot substitute its judgment for that of the hearing officer.  See id.  Accordingly, the Court cannot grant certiorari relief on this issue.  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 May 2005.




                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division





_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Divison



Copies furnished to:

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL  34625


Jason Helfant, Assistant General Counsel

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] There are exceptions to the accident privilege report which are not applicable in this case.  See e.g. Perez v. State, 630 So.2d 1231, 1232 (Fla. 2d DCA 1994)(concluding that the spontaneous incriminating statements to a deputy at the accident scene were not protected by the accident report privilege); State v. Norstrom, 613 So.2d 437, 440 (Fla. 1993)(concluding that accident report privilege did not apply to bar driver’s voluntary statements to investigating officers where driver was never informed that that he was required to answer questions and had been read his Miranda rights).

[2] This section states, in part:  “Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting.  No such report or statement shall be used as evidence in any trial, civil or criminal.”     

[3] Deputy Kirby failed to circle which test was offered; however, his statements provide that only a blood test was offered.  The lawfulness of the requested blood test is not an issue before this Court.