Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – Breath Test Refusal –
hearing officer, as finder of fact, charged with determining that driver
refused to submit to test – arresting officer testified that driver refused to
provide adequate breath sample and observed that driver “faked” cough - hearing
officer’s finding that driver refused breath test is supported by competent
substantial evidence - Petition denied. Bennett v. Dept. of Highway Safety and Motor
Vehicles, No. 05-0035AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 05-0035AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
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.
Petitioner, Michael Bennett (Bennett), seeks review of the Final Order of
License Suspension, entered March 31, 2005, in which the hearing officer for
the Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Bennett’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 Bennett 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 February 5, 2005, at approximately 1:18 a.m., Officer Delong, of the St. Petersburg Police Department, observed a vehicle run through two stop signs. Officer Delong conducted a traffic stop and approached the driver, identified as Bennett. Officer Delong observed several signs of impairment, including bloodshot, watery eyes, slurred speech and poor balance. Officer Albertson arrived as back-up to evaluate Bennett’s impairment. Officer Albertson observed the same signs of impairment and Bennett admitted to consuming alcohol. In obtaining Bennett’s biographical information, Bennett denied that he was sick, injured, or had any physical defects. Bennett described his health as “poor” due to a lack of sleep.
Bennett failed the subsequent field sobriety tests and was requested to submit to a breath test. Bennett was observed pretending to blow into the mouth piece, making a face as if he were blowing. The breath test instrument gave a reading of low sample volume. Bennett informed Officer Arkovich, the breath test operator, he was just getting over pneumonia. Bennett was observed coughing at will, what Officer Albertson observed as a fake cough. Officer Arkovich explained the consequences of the implied consent law and Bennett responded “do what you got to do.” Officer Arkovich completed the Refusal Affidavit. The hearing officer considered the documents generated at the time of Bennett’s arrest and the testimony of Officer Albertson and concluded that Bennett refused to submit to a breath test.
Bennett argues that the Final Order finding that Bennett refused to submit to a breath test is not supported by competent substantial evidence. In addressing this issue, the Court reiterates that the hearing officer, as the fact finder, was charged with determining by a preponderance of the evidence that Bennett refused to submit to a breath 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); see also Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same). The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Bennett’s arrest. See Satter, 643 So.2d at 695.
In this case, Officer Albertson was subpoenaed to testify and his testimony was consistent with his observations at the time of Bennett’s arrest. Compare with Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1086 (Fla. 1st DCA 2002)(finding that circuit court did not impermissibly reweigh the evidence in quashing the Department’s order of license suspense where the documents were in conflict and critical facts went unexplained). There is no basis in the law for a hearing officer to disregard an officer’s observations because he is not a medical doctor. The hearing officer was charged with determining whether Bennett was unable to provide a breath sample or was simply refusing to do so by not providing an adequate sample. The hearing officer concluded that Bennett refused to submit to the breath test. The Court cannot reweigh the evidence to arrive at a different conclusion. See Satter, 643 So.2d at 695; Favino, 667 So.2d at 309. Accordingly, the Court finds that the Final Order is supported by competent substantial evidence and that certiorari relief must be denied. Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
LAUREN C. LAUGHLIN JAMES R. CASE
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Roger D. Futerman, Esquire
Carlos J. Raurell, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews