Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –– hearing officer did not depart from the essential requirements of law- law enforcement must render reasonable assistance in helping a DUI arrestee obtain an independent blood test upon request-- minimal aid may be sufficient- the officer afforded petitioner an opportunity to call someone to take the blood and urine test- appellate court must not substitute its judgment for that of the hearing officer - Petition denied. Craun v. State,  (6th Cir. App. Ct. November 18, 2005).







JAMES O. CRAUN, JR.,      



vs.                                                                   Appeal No: 51-2005-CA-2034WS










            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, James O. Craun, Jr., seeks review of the Final Order of License Suspension, entered July 1, 2005 in which the hearing officer for the respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Craun's driving privilege was properly suspended for a period of six 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 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). 

            Following petitioner's arrest for driving under the influence, petitioner requested a formal administrative review of his license suspension. An evidentiary hearing was held for that purpose.[1]

            After the evidentiary hearing, the hearing officer made the following findings:


On May 6, 2005, at approximately 9:18 PM, Deputy MacFarlane of the Pasco County Sheriff's Office stopped a vehicle for careless driving.  When he approached the vehicle, Deputy MacFarlane observed a male identified as [Petitioner] sitting in the driver's seat.  As he spoke with [Petitioner], Deputy MacFarlane smelled a strong odor of an alcoholic beverage on his breath, his speech was slurred, and his eyes were glassy and bloodshot. [Petitioner] admitted that he had been drinking. Deputy MacFarlane asked [Petitioner] if he would perform some Field Sobriety Exercises and he agreed.  His performance of the Field Sobriety Exercises indicated further clues of impairment and he was arrested for DUI.


Deputy MacFarlane transported [Petitioner] to the Pasco County Jail where he was read Implied Consent Warnings and asked to take a lawful breath test.  [Petitioner] agreed to take the breath test and his results were  .095g/210L and .110/210L.  After the breath test, [Petitioner] stated that he wished to have an independent blood and urine test done.  Deputy MacFarlane testified at the hearing that prior to leaving the jail, he made sure that [Petitioner] had someone he could call to find someone to take a blood and urine test.[2]  [Petitioner]'s driving privilege was suspended for driving with an unlawful alcohol level.


            Attorney Bianco made a motion to invalidate the administrative suspension,        arguing that Mr. Craun was not afforded the chance to get a blood or urine test.             This motion is denied.


The hearing officer found that the petitioner's license was properly suspended. 


            Petitioner argues that the hearing officer did not follow the essential requirements of the law in upholding the suspension. To support this claim, petitioner relies on    Unruh v. State, 669 So. 2d 242 (Fla. 1996), arguing that once a breath test is taken, the state is required to aid the petitioner in obtaining a blood test.  Petitioner argues that in this case, he repeatedly asked for a blood test.  However, Deputy MacFarlane did nothing to aid  him other than asking him if he needed a phone so that when he was released he could get a blood test. Petitioner further argues that MacFarlane failed to advise him that he would be held for eight hours before release. Thus, petitioner argues, the practical effect of MacFarlane's actions were to violate petitioner's right to obtain an independent blood test pursuant to Unruh. This Court disagrees.

            The Florida Supreme Court did hold, in Unruh, that law enforcement must render reasonable assistance in helping a DUI arrestee obtain an independent blood test upon request.  In doing so, however, the Florida Supreme Court further held that "in some cases, minimal aid such as providing access to a telephone and directory will be sufficient." Unruh at 243.  In this case, the officer afforded petitioner an opportunity to call someone to take the blood and urine test. Apparently, petitioner indicated he would call his fiancé.  As determined by the hearing officer, this assistance was reasonable under the circumstances.  This Court will not substitute its judgment of 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, Pasco County, Florida this ________ day of November, 2005.



                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge





                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge



Copies furnished to:

Frank P. Bianco, Esq.

Jason Helfant, Esq.







[1] There is a Notice of Filing "CD-R DISKETTE OF JUNE 28, 2005 . . . FORMAL REVIEW HEARING" in the traffic cases but the appeal file does not contain a transcript of the hearing.  The only formal document that this file contains is the "Pasco County Sheriff's Office Alcohol/Drug Influence Report." 

[2] On the Alcohol/Drug Influence Report, MacFarlane wrote: The defendant wanted a blood sample taken after the results of the breath test.  The defendant also wanted a urine sample taken.  Prior to leaving the jail I made sure the defendant had someone he could call collect to find someone to take a blood and urine sample.  The defendant advised me he could call his fiancée, Patti Rozankowski.