Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – Accident Report Privilege
– Blood Alcohol Test - hearing officer erred in considering pre-Miranda
statements of drivers involved in automobile accident taken during the accident
investigation – hearing officer properly considered witnesses’ statements that
were not involved in accident – hearing officer erred in considering the
results of the blood test where the record was void of evidence that a breath
or urine test was impossible or
impractical – hearing officer erred in considering the results of the blood
test when the blood test was obtained as a result of the officer giving driver
an ultimatum between submitting to a blood test or going to jail --Petition
granted. Vaughn v. Dept. of Highway
Safety and Motor Vehicles, No. 05-0094AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
PETER DAVID VAUGHN,
Petitioner,
vs. Appeal No. 05-0094AP-88A
UCN522005AP000094XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
____________________________________________/
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 granted as set forth below.
The
Petitioner, Peter David Vaughn (Vaughn), seeks review of the Final Order of
License Suspension, entered November 4, 2005, in which the hearing officer for
the Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Vaughn’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 Vaughn 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 August 22,
2005, at approximately 9:38 p.m., Deputy Willet, of the Pinellas County
Sheriff’s Office, responded to a two-car accident at the intersection of
Deputy Evans, of the same
department, then arrived on the scene and was informed of the situation by
Deputy Willet. According to Deputy
Willet’s report, Deputy Evans assumed the DUI investigation. Deputy Evans observed a
Before this Court, Vaughn argues that the hearing officer improperly relied on evidence barred by the accident report privilege in finding that Vaughn was in actual physical control of a motor vehicle and that the hearing officer improperly relied on illegally obtained blood alcohol test results in concluding that Vaughn had an unlawful blood alcohol level. In addressing the first issue, the Court finds that, as a general rule, statements of persons involved in a crash made to investigators at the accident scene, including admissions made by a driver, are privileged and inadmissible in administrative license suspension proceedings.[1] (emphasis added). See Fla. Stat. 316.066(4);[2] Nelson v. State, Department of Highway Safety and Motor Vehicles, 757 So.2d 1264, 1265 (Fla. 3d DCA 2000); Department of Highway Safety and Motor Vehicles v. Perry, 702 So.2d 294, 295 (Fla. 5th DCA 1997). Hence, the application of the accident report privilege barred the consideration of statements made by Vaughn and the other involved driver and, to the extent that the hearing officer relied on such statements, this was error.[3]
However, the witness statements
provided by Albright and Lucas were admissible, as there is nothing in the
record to suggest that they were involved in the accident. See McTevia v. Schrag, 446
So.2d 1183, 1185 (Fla. 4th DCA 1984)(holding that testimony of motorist who had
been following plaintiffs’ automobile was not subject to statutory privilege
where the following motorist was not “involved” in the accident); Smith v.
State, Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly
Supp. 820 (Fla. 6th Cir. App. Ct. May 5, 2005)(finding that statement made by
witness was admissible when there was nothing in the record to show that
witness had been involved in crash). Likewise,
the observations of Deputy Willet and Deputy Evans, and those conveyed by the
paramedics, were not protected by the accident report privilege.
In reviewing the second issue, the Court
finds that the law has historically treated blood tests differently than breath
and urine tests and, as set forth in Florida Statutes, § 316.1932(1)(a), are
limited to those situations in which a breath or urine test is impossible or
impractical. See State v. Serrago, 875 So.2d 815, 819 (
Furthermore, the Court finds that
the hearing officer erred in considering the blood test results as Deputy Evans
gave Vaughn an ultimatum between submitting to a blood test or going to jail. Such an ultimatum is clearly not authorized
by the implied consent law, Florida Statutes, § 316. 1932(1)(a), which
specifies that an officer can only inform a driver that his or her license will
automatically be revoked for a certain time period for refusing to any lawful
test and that such refusal is admissible as evidence in a criminal
proceeding. See
Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is granted and the
Final Order of License Suspension is quashed.
DONE
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:
Marc N. Pelletier, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
[1] There are exceptions to the accident privilege report. See e.g. Perez v. State, 630 So.2d 1231, 1232 (Fla. 2d DCA 1994)(concluding that the spontaneous incriminating statements to a deputy at the accident scene were not protected by the accident report privilege); State v. Norstrom, 613 So.2d 437, 440 (Fla. 1993)(concluding that accident report privilege did not apply to bar driver’s voluntary statements to investigating officers where driver was never informed that that he was required to answer questions and had been read his Miranda rights).
[2] This section states, in part: “Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.”
[3] The Court notes that the hearing officer failed to rule on two motions to invalidate the license suspension based on inadmissible statements contained in the accident report and an unlawful blood draw. The Court finds that, to ensure the Petitioner’s due process rights and to properly preserve issues for appellate review, it is incumbent upon the hearing officer to rule on motions presented during the formal review hearing.
[4] There is no assertion by the Department, nor did the hearing officer find, that Deputy Evans could require Vaughn to submit to a blood draw, pursuant to Florida Statutes, § 316.1933(1), as a result of causing death or serious bodily injury to another human being.
[5] The
Court notes that even had Deputy Evans offered a breath test, under these same
facts, it would have been invalid since a breath test can only be administered
incident to a lawful arrest. See