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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 05-0048AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
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, 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 (
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.
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. 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.
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
However, the hearing officer could
consider other documents in non-affidavit form in determining whether Bradley
had an unlawful alcohol level.
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:
Craig Epifanio, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
 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.