Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test Affidavit – breath test affidavit was defective such that the Department did not receive the benefit of presumption of impairment – arrest narrative and Intoxilyzer print-out provided evidence that driver’s alcohol level was over the legal limit – hearing officer’s finding that driver was operating motor vehicle with an unlawful alcohol level supported by competent substantial evidence - Petition denied. Bradley v. Dept. of Highway Safety and Motor Vehicles, No. 05-0048AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 200).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

JERRY BRADLEY,

                                    Petitioner,

vs.                                                                                               Appeal No. 05-0048AP-88A

                                                                                                   UCN522005AP000048XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    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, Jerry Bradley (Bradley), seeks review of the Final Order of License Suspension, entered June 9, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Bradley’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 Bradley 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 May 6, 2005, at approximately 11:46 p.m., Trooper Taylor, of the Florida Highway Patrol, conducted a traffic stop of Bradley for driving 64 m.p.h. in a 45 m.p.h. speed zone.  Upon making contact with Bradley, Trooper Taylor observed several signs of impairment, including that Bradley had a strong odor of alcohol, watery eyes and mumbled speech.  Bradley performed poorly on the field sobriety tests and was arrested for DUI.  Trooper Taylor transported Bradley to the Central Breath Center where Bradley submitted to a breath test.  The results of the breath samples were .097g/210L and .100g/210L.  At the formal review hearing, the hearing officer considered several documents generated at the time of Bradley’s arrest and concluded that Bradley’s license suspension should be sustained for DUI.

            On appeal, Bradley argues that the Department did not have competent substantial evidence that Bradley was operating a motor vehicle with an unlawful alcohol level.  Bradley’s argument is premised on the fact that the Breath Test Result Affidavit (Affidavit) does not provide the time of collection of the breath samples, the results of the test show “0.___”, and the Trooper Taylor’s signature is without attestation or notarization.  The Department does not dispute these details.[1]  The Court finds that Bradley’s request for certiorari relief must be denied.

            Initially, the Court reiterates that the hearing officer was charged with determining, by a preponderance of the evidence, whether Bradley had an unlawful alcohol level of .08 or higher. 

The hearing officer could make this finding without witnesses testifying on behalf of the Department and based on documents generated at the time of Bradley’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  It is clear that the incomplete Affidavit is fatally defective; hence, the Department did not receive the benefit of the presumption of impairment that an affidavit normally affords.  See Fla. Stat.

§ 316.1934(5). 

            However, the hearing officer could consider other documents in non-affidavit form in determining whether Bradley had an unlawful alcohol level.  See State, Department of Highway Safety and Motor Vehicles v. Anthol, 742 So.2d 813, 814 (Fla. 2d DCA 1999)(explaining that results of any breath or blood test are not required to be in affidavit form to be considered by a hearing officer in an administrative proceeding).  Trooper Taylor’s Arrest Narrative and the Intoxilyzer print-out are evidence that Bradley’s alcohol level was over the legal limit.  The Court finds these documents provide competent substantial evidence to support the hearing officer’s decision to sustain Bradley’s license suspension.  The Court cannot reweigh the evidence to arrive at a different conclusion.  See Satter, 643 So.2d at 695.

            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:

 

Craig Epifanio, Esquire

2600 Martin Luther King St. N., Suite 302

St. Petersburg, FL  33704

 

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] The Court notes that Bradley failed to include the Affidavit in his appendix.  However, since the contents of the Affidavit are not in dispute, the Court will not order Bradley to supplement the record with the Affidavit.