Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Implied Consent – Confusion Doctrine – Beyer’s argument that she was confused by having two rights read together, Miranda and implied consent, must fail – driver never made her confusion known to the officer so that officer could have an opportunity to provide further explanation - Petition denied. Beyer v. Dept. of Highway Safety and Motor Vehicles, No. 05-0017AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

KATHY BEYER,

                        Petitioner,

 

vs.                                                                                                Appeal No. 05-0017AP-88A

                                                                                                    UCN522005AP000017XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        Respondent.

____________________________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            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, Kathy Beyer (Beyer), seeks review of the Final Order of License Suspension, entered February 3, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Beyer’s driving privilege was properly suspended for a period of one year for driving under the influence (DUI).  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Beyer 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 15, 2004, at approximately 8:33 p.m., Officer Harris, of the Clearwater Police Department, observed a vehicle driving northbound in a southbound lane causing several vehicles to move over to avoid a collision.  Officer Harris conducted a traffic stop and approached the driver, identified as Beyer.  Officer Harris observed that Beyer’s eyes were bloodshot and watery, and that the odor of alcohol emanated from Beyer’s breath.  Officer Harris asked Beyer how much she had to drink and Beyer responded “not much at all.”  Officer Miller arrived as back-up at the same time as Beyer’s husband.  Beyer’s husband was on the phone and immediately informed his wife not to perform any “tests.”  As stated by Officer Harris in her arrest narrative, “Beyer was having a hard time making a decision as to whether or not she was going to perform the tasks.”  Beyer eventually made the decision to perform the field sobriety tests and performed poorly.  Beyer was placed under arrest for DUI.

            Officer Harris asked Beyer if she would take a breath test and informed her of the implied consent law.  Officer Harris then read Beyer the Miranda warnings and transported her to the breath testing facility.  After the 20-minute observation period, Officer Harris asked Beyer if she planned to take the test to which Beyer responded “she didn’t know what she was going to do.”  Officer Harris informed Beyer that it was her last opportunity to take the breath test.  Beyer asked if her license would be suspended for one year to which Officer Harris told her it would if she refused the breath test.  Beyer then stated she wasn’t taking the breath test.    

            At the hearing, Beyer testified that she believed her statement that she would not take the breath test could not be used against her because she invoked her right to remain silent.  Beyer further testified that Officer Harris did not explain that her response to the request to take the breath test is an exception to invoking her Miranda right to remain silent.  Upon considering the documents generated at the time of Beyer’s arrest and the testimony of Beyer, the hearing officer concluded that Beyer refused to submit to a breath test.

            Beyer argues that the Department failed to follow the law and afford Beyer due process in finding that Beyer unlawfully refused to submit to a breath test.  Beyer’s argument is premised on the “confusion doctrine.”   This doctrine holds that a licensee’s refusal to submit to a breath test will be excused if the licensee is confused by having two rights read together, Miranda rights and the implied consent law, and the officer does not inform the suspect that Miranda rights do not apply to the decision of whether to take the breath test.  See Wright v. Arkansas, 288 S.W.2d 850, 852 (Ark. 1986); see also Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002).  The confusion doctrine has not been addressed by Florida courts at the District Court level.

            Beyer cites to the county court decision of State v. Alves, 3 Fla. L. Weekly Supp. 553a (Fla. Orange Cty. Ct. 1995), in support of her argument that her refusal is invalid based on the confusion doctrine.  In Alves, a decision which is not binding on this Court, the defendant, post-Miranda, emphatically stated he wanted to speak to an attorney.  The officer never clarified that Miranda rights did not apply to the implied consent law.  The county court granted Alves’ motion to suppress his refusal finding the defendant was misled to believe that he was exercising his right to remain silent as a result of the officer’s representations.

            The Court finds that even if Alves were binding on this Court, there is no evidence in the record that Beyer exercised her right to remain silent.  After being read Miranda, Beyer continued to talk to Officer Harris, asking several times when she would be able to get out of jail and whether she could use the phone at the jail.  Further, this Court agrees with the Eighteenth Judicial Circuit Court, sitting in its appellate capacity, that “[i]f, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.”  See Ringel, supra.  While Beyer testified that she believed her post-Miranda statements could not be used against her, Beyer did not testify, nor does the record indicate, that Beyer made her confusion known to Officer Harris. 

          Accordingly, the Court finds that the hearing officer’s conclusion that Beyer unlawfully refused to submit to the breath test is supported by competent substantial evidence.  The Court cannot reweigh the evidence to arrive at a different conclusion.  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); see also Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same).  Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2005.

 

           

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                                  ______________________________

LAUREN C. LAUGHLIN                                                     JAMES R. CASE

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

J. Kevin Hayslett, Esquire

250 N. Belcher Road, Suite 102

Clearwater, FL  33765

 

Carlos J. Raurell, 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