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 (Fla. 6th Cir. App. Ct. March 20, 2006).









vs.                                                                                               Appeal No. 05-0094AP-88A









            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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            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 Seminole Boulevard and Johnson Boulevard.  Upon arrival, Deputy Willet was approached by Harold Albright and Dallas Lucas, who informed Deputy Willet that they had witnessed the crash and wanted to offer a statement.  Albright and Lucas stated that they observed a truck traveling southbound in the through lane through a green light when it turned in front of a vehicle traveling northbound.  Deputy Willet confirmed that the truck was not in the turn lane.  Deputy Willet was then approached by a fire rescue medic, who informed her that the driver, later identified as Vaughn, was “giving them problems.”  Deputy Willet proceeded to the area of the truck, located approximately 75 yards north of where the accident occurred.  Deputy Willet observed that Vaughn’s shirt was saturated with blood and that he was holding cloth or gauze to his nose.  Deputy Willet detected a strong odor of alcohol from Vaughn.  Deputy Willet then asked Vaughn what had occurred and Vaughn described that he was traveling south on Seminole Boulevard when he made a U-turn and struck a vehicle.

            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 Lincoln with heavy front-end damage and, approximately one block north, observed a Chevy pick-up with heavy damage to the right front-end.  Deputy Evans also observed that Vaughn, who was still being treated by paramedics, had blood saturating his shirt and had sustained injuries to his face.  Deputy Evans was advised by the paramedic that Vaughn’s blood pressure was elevated and that he may have sustained a concussion.  Upon questioning by Deputy Evans, Vaughn gave the same explanation regarding the traffic accident.  Vaughn was then transported to Largo Medical Center.  Deputy Evans arrived at the hospital and requested that Vaughn submit to a blood draw.  Vaughn initially refused, at least twice, and was then informed of the implied consent law.  Deputy Evans also told Vaughn that he could either submit to a blood draw or be arrested for DUI and taken to the Pinellas County Jail.  Vaughn submitted to a blood draw.  On September 1, 2005, Deputy Evans issued Vaughn a citation for DUI as the blood tests showed an unlawful blood alcohol level of .208g/100 ml and .210g/ml.  After a formal review hearing, Vaughn’s license suspension was sustained for a period of six months for DUI.

            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.  See State v. Edwards, 463 So.2d 551, 554 (Fla. 5th DCA 1985).  Hence, in looking at the totality of the evidence that was admissible, and the reasonable inferences to be drawn therefrom, the Court finds that there is competent substantial evidence in the record to support the finding of probable cause.  See Department of Highway Safety and Motor Vehicles v. Silva, 806 So.2d 551, 554 (Fla. 2d DCA 2002)(explaining that probable cause is a conclusion often drawn from reasonable inferences); see also Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(finding that probable cause exists “where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed”); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same).

            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 (Fla. 2d DCA 2004)(explaining the distinction between when breath and urine tests, versus blood tests, are authorized by statute).[4]  Such situations include if the person is unconscious or in shock or on the operating table of a hospital.  See State v. Kliphouse, 771 So.2d 16, 22 (Fla. 4th DCA 2000)(explaining the legislative intent for administering blood tests pursuant to § 316.1932).  The facts of this case show that Vaughn did suffer injuries: his nose was broken, he had lacerations on the inside of his mouth for which he needed sutures, and he had a laceration on his leg.  Yet, Vaughn apparently had no problem communicating with Deputy Evans, nor was in need of immediate emergency medical care.  Further, Deputy Evans testified that she believed that Vaughn had not suffered serious bodily injury and it would have been practical to offer Vaughn a breath test at the county jail had Vaughn been arrested for DUI.  Under these facts, the Court finds that it was not impractical or impossible for Vaughn to submit to a breath or urine test and that the results of Vaughn’s blood tests should not have been considered by the hearing officer.[5] 

            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 Fla. Stat. 316.1932(1)(a); see also State v. Slaney, 653 So.2d 422, 430 (Fla. 3d DCA 1995)(holding that the results of the blood alcohol test on DUI arrestee were properly suppressed as arrestee’s consent was induced by officer’s misrepresentation of the law). 

            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 Clearwater, Pinellas County, Florida, this ________ day of March 2006.




                                                     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

877 Executive Center Drive West, Suite # 112

St. Petersburg, FL  33702


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

[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 Fla. Stat. 316.1932(1)(a); see also State, Department of Highway Safety and Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003).