Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – actual physical control – hearing officer charged with weighing conflicting evidence – competent substantial evidence in the record supports hearing officer’s conclusion that driver was in actual physical control of vehicle – officer observed vehicle drive erratically and observed driver exit the vehicle - Petition denied.  Gostyla  v. Dept. of Highway Safety and Motor Vehicles, No. 05-0020AP-88B (6th Cir. App. Ct. July 8, 2005).








vs.                                                                                               Appeal No. 05-0020AP-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, Scott Gostyla (Gostyla), seeks review of the Final Order of License Suspension, entered February 18, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Gostyla’s driving privilege was properly suspended for a period of six 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 Gostyla 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 December 30, 2004, at approximately 1:45 a.m., Deputy Christie, of the Pinellas County Sheriff’s Office, was standing at a Hess gas station when he observed a black vehicle enter the parking lot.  Deputy Christie visually estimated that the vehicle was traveling at forty-five m.p.h. and it appeared to Deputy Christie that the vehicle was not going to stop.  Approximately five feet before reaching a parking space, the driver applied the brakes which caused the front tires to lock up.  The vehicle then slid to a stop approximately four feet from the sidewalk.  The driver, identified as Gostyla, exited the vehicle and immediately went to the trunk.  Deputy Christie approached Gostyla and asked him if everything was okay, to which Gostyla responded “yes.”  Deputy Christie observed several signs of impairment, including bloodshot, watery eyes, slurred speech and poor balance.  Deputy Christie then asked Gostyla for his driver’s license, which he had trouble retrieving, and detained him for investigation.  Gostyla failed the subsequent field sobriety tests and the results of the breath tests were .185g/210L and .191g/210L.  

            Before this Court, Gostyla argues that his license suspicion should have been invalidated as there was not probable cause to initiate a traffic stop and there was a lack of evidence that Gostyla was in actual physical control.  In addressing these issues, the Court finds that Deputy Christie’s initial contact with Gostyla was a consensual citizen/police encounter not a traffic stop; Deputy Christie was already at the Hess station when the vehicle pulled into the parking lot and Gostyla voluntarily exited his vehicle.  See Popple v. State, 626 So.2d 185, 187-88 (Fla. 1993)(explaing the characteristics of a consensual encounter versus an investigatory stop).  At the point Gostyla was detained, Deputy Christie had at least reasonable suspicion, from the totality of the circumstances, that Gostlya had committed or was about to commit a crime, DUI.  See Parsons v. State, 825 So.2d 406, 409 (Fla. 2d DCA 2002)(stating that a court should consider all facts known to police at the time of the investigatory stop such as time, location, suspect’s physical behavior or anything unusual the suggests criminal activity); see also Finzio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001)(stating that even when none of the facts standing alone would give rise to a reasonable suspicion, when taken together as viewed by an experienced deputy they can provide clear justification for a brief detention).

            In addressing the remaining issue, the Court reiterates that the hearing officer, as the fact finder, was charged with determining whether Deputy Christie had probable cause to believe that Gostyla was in actual physical control of a motor vehicle while under the influence.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994); see also Fieselman v. State of Florida, 537 So.2d 603, 607 (Fla. 3d DCA 1988)(concluding that whether the defendant was in actual physical control of vehicle while intoxicated was for the fact finder).  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Gostlya’s arrest.  See Satter, 643 So.2d at 695. 

            In this case, the hearing officer considered the testimony of the Paige Russell, who stated that she was driving the vehicle while sitting on Gostlya’s lap, then climbed off Gostlya and exited the vehicle from the passenger’s side once the vehicle came to a stop.  However, Deputy Christie’s Offense Report identifies Gostlya as the driver and the individual he observed exiting the driver’s side.  The hearing officer was charged with weighing the conflicting evidence in reaching the conclusion that Gostlya was in actual physical control of the vehicle.  The Court cannot reweigh the evidence to arrive at a different conclusion.  See id.



            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 July 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


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