Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test – record evidence showed that Petitioner had a medical condition that caused her to frequently belch, as she was during the breath test – no record evidence that medical condition prevented Petitioner from providing breath sample – hearing officer, as trier of fact, must resolve conflicting evidence as to whether Petitioner was able to provide breath sample - Petition denied. Wilkinson v. Dept. of Highway Safety and Motor Vehicles, No. 05-0059AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).









vs.                                                                                               Appeal No. 05-0085AP-88B








            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  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, Carole Wilkinson (Wilkinson), seeks review of the Final Order of License Suspension, entered September 22, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Wilkinson’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 Wilkinson 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 July 31, 2005, at approximately 2:30 a.m., Sergeant Darroch, of the Pinellas Park Police Department, observed a vehicle approaching from behind him at a high rate of speed.  The vehicle jerked to the north and drove up onto the median.  Concerned for the driver’s safety and the safety of others, Sergeant Darroch conducted a traffic stop.  Officer Griffiths, of the same agency, arrived to conduct a DUI investigation. 

            Upon making contact with the driver, identified as Wilkinson, Officer Griffiths observed several signs of impairment, including that Wilkinson smelled of alcohol, had red, dilated eyes, and was unable to stand without assistance.  Wilkinson stated that she was not ill or sick.  Wilkinson informed Officer Griffiths that she was nervous and always feels like she is going to vomit when she is very nervous.  Wilkinson made noises like she was going to vomit, but did not.  Wilkinson failed the field sobriety tests and was arrested for DUI.  After being transported to the central breath testing facility, Wilkinson began to burp continuously and make noises, stating that she felt sick again.  Officer Griffiths asked Wilkinson if she would submit to a breath test to which she responded “no.”  Officer Griffiths then read Wilkinson the Implied Consent Warning.  Wilkinson stated that she understood the warning and did not want to provide a breath sample.

            At the formal review hearing, the breath test operator, Malcolm Deane, testified that he prepared the intoxilyzer and asked Wilkinson to submit to a breath test to which she responded “no.”  Mr. Deane testified that Wilkinson provided no explanation as to why she would not submit to the breath test.  Wilkinson also testified at the formal review hearing and explained that she suffers from a medical problem that causes her to burp without stopping.  Wilkinson stated that she wanted to submit to the breath test, but could not stop burping.  Wilkinson presented medical reports from Dr. Ellis, dated August 1, 2005, and August 4, 2005, concerning her medical condition.  She also presented a Discharge Summary from Largo Medical Center, showing that Wilkinson was admitted to the hospital for a 4-day period in 2003 for conditions related to abdominal pain.  After considering the evidence and testimony, the hearing officer sustained Wilkinson’s license suspension.

            Before this Court, Wilkinson argues that the license suspension should have been invalidated as Wilkinson did not knowingly or intentionally refuse to submit to a breath test.  In reviewing the record, this Court cannot conclude that the hearing officer erred in sustaining the license suspension.  Initially, the Court finds that it “must accept evidence which, like the material testimony of the police officers, is neither impeached, discredited, controverted, contradictory within itself, or physically impossible.”  See State v. Fernandez, 526 So.2d 192, 193 (Fla. 3d DCA 1988), cause dismissed, 531 So.2d 1352 (Fla. 1988).  In this case, Wilkinson testified that she wanted to submit to the breath test, but could not stop burping.  Wilkinson submitted medical reports that state Wilkinson suffers from a medical condition that causes her to frequently belch; however, these reports are silent as to whether such condition would prevent Wilkinson from providing a breath sample.  Mr. Deane and Officer Griffiths stated that Wilkinson flatly refused to take the breath test without providing any explanation.  There is nothing in the record to suggest that Wilkinson had any difficulty communicating to Mr. Deane or Officer Griffiths, nor anything in the record to show that Wilkinson communicated that she had a medical condition that prevented her from taking the breath test.

            The Court finds that these facts present conflicting evidence as to whether Wilkinson’s medical condition prevented her from providing a breath sample.  Accordingly, as the trier of fact, it was the duty of the hearing officer to resolve the conflicting evidence.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995).  The Court cannot reweigh the evidence to reach a different conclusion.  See id. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of February 2006.                       




                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division







_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division







Copies furnished to:


Curtis M. Crider, Esquire

1550 South Highland Ave., Suite C

Clearwater, FL  33756


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