Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Implied Consent – Petitioner argument
that there was no evidence in the record that he was properly advised must
fail; the record contains a Refusal to Submit to Breath, Urine or Blood Test
(DDL 5)-that document was reviewed by the hearing officer and made a part of
the record. That document contains the necessary language of informed consent Petition denied. Ballinger v. State of
Florida, Department of Highway Safety and Motor Vehicle, (Fla. 6th
IN THE CIRCUUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
v. Case No: 51-2005-CA-001033ES
OF HIGHWAY SAFETY AND MOTOR
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response to Petition for Writ of Certiorari, and Reply to Response. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.
The petitioner, William Ballinger, seeks review of the Final Order of License Suspension, entered March 8, 2005, in which the hearing officer for the respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Ballinger's driving privilege was properly suspended for a period of eighteen months for driving under the influence (DUI). In reviewing the Department’s order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential requirements of law had been observed, and (3) whether the administrative findings and judgment were supported by competent substantial evidence. See Vichich v. Department
However, he could not remember if he read it or if Deputy Connor actually read it.
Deputy Conner testified that he was the one who read implied consent to the petitioner at the jail. When asked what he read from, Conner testified "[t]here's an actual Implied Consent card. I don't remember. There's an actual form at the jail." He testified that both the form and the card are the same. Petitioner's counsel asked ". . . [s]o you would've told him that if he refused, his license would be suspended for 12 months. If he refused prior to that, it would be suspended for 18. If he blew, then he would be suspended for six?" The deputy responded "[t]hat's correct."
The hearing officer found that petitioner was "read Implied Consent from an issued card at the scene and refused to perform a breath test. He was then transported … where he was again read Implied Consent from a card and refused a breath test." Petitioner claims that the department departed from the essential requirements of law by failing to invalidate the petitioner's suspension because the petitioner was given misinformation regarding the implied consent warning. This Court disagrees.
In this case, petitioner contends that the officer told him that his license would be suspended regardless of the results of the breath test. In support of this argument he points to the officer's testimony where petitioner asked the officer about his reading of implied consent. After the officer stated that he "read the implied consent" either from a card or from a form at the jail, petitioner's counsel asked:
[s]o you would've told him that if he refused, his license would be suspended for 12 months. If he refused prior to that, it would be suspended for 18. If he blew, then he would be suspended for six?
The deputy responded "[t]hat's correct." Petitioner argues that there was no evidence in the record that he was properly advised. This Court disagrees. The record contains a Refusal to Submit to Breath, Urine or Blood Test (DDL 5). That document was reviewed by the hearing officer and made a part of the record. That document contains the necessary language of informed consent. The hearing officer has the responsibility as trier of fact to weigh the record evidence, assess the credibility of the witnesses, resolve conflicts in the evidence, and make findings of fact. Department of Highway Safety and Motor Vehicles v. Dean, 662 So. 2d 371 (Fla. 5th DCA 1995); Department of Highway Safety and Motor Vehicles v. Satter, 643 So. 2d 692 (Fla. 5th DCA 1994). This Court will not substitute its judgment for that of the trier of fact.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers, at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Eilam Isaak, Esq.
Carlos J. Raurell, Esq.