Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – fellow officer rule – conflicting evidence - specific findings of fact – fellow officer rule allowed arresting deputy to rely on representations of officer that conducted traffic stop – hearing officer was charged with resolving conflicting evidence as to time of arrest and when breath test was administered – hearing officer is not required to make specific findings in addressing issues raised during the formal review hearing - Petition denied. Emley v. Dept. of Highway Safety and Motor Vehicles, No. 06-0091AP-88B (Fla. 6th Cir. App. Ct. July 7, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DEAN ROYCE EMLEY,

                                    Petitioner,

 

vs.                                                                                               Appeal No. 06-0019AP-88B

                                                                                                   UCN522006AP000019XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    Respondent.

____________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.[1]  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, Dean Royce Emley (Emley), seeks review of the Final Order of License Suspension, entered February 9, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), suspended Emley’s driving privilege for a period of one year for driving under the influence.  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Emley 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).

After a formal review hearing, the hearing officer made the following findings of fact, which neither party disputes:

On November 24, 2005, at approximately 12:58 a.m., Deputy Langlais of the Pinellas County Sheriff’s Office responded to a traffic stop conducted by Sergeant Page.  Sergeant Page stated that he observed a vehicle driven by Dean R. Emley having difficulty maintaining a single lane.  Sergeant Page stated that he observed the vehicle leave the lane of travel on several occasions to the right, and the driver would correct by jerking the vehicle back into the lane.  Based on his experience, Sergeant Page believed the driver might be possibly impaired, and he initiated a traffic stop.  As he spoke with Mr. Emley, Sergeant Page detected clues of impairment, and Mr. Emley admitted that he had been drinking.  Sergeant Page requested a DUI traffic unit to respond.

 

When he met Mr. Emley, Deputy Langlais noticed a distinct odor of an alcoholic beverage on his breath, his eyes were bloodshot, he was unsteady on his feet, and he swayed as he stood.  Deputy Langlais asked Mr. Emley if he would perform some Field Sobriety Exercises and he agreed.  His performance on the Field Sobriety Exercises indicated further clues of impairment and he was arrested for DUI.  Mr. Emley was asked to take a lawful breath test and he agreed.  His results were .174g/210L and .183g/210L.  Mr. Emley’s driving privilege was suspended for driving with an unlawful alcohol level.

 

At the conclusion of the formal review hearing, the hearing officer sustained Emley’s

 

license suspension for a period of one year for DUI.

 

On appeal, Emley argues that the hearing officer erred in not invalidating his license suspension as Emley was not under lawful arrest at the time the breath test was administered and that there was no admissible proof that Emley was in actual physical control of a motor vehicle.  Emley also argues that the hearing officer departed from the essential requirements of law in failing to make specific findings of fact in regard to the motions raised by Emley during the formal review hearing.

            First, the Court finds that the record supports the hearing officer’s finding that Emley was in actual physical control of the vehicle.  The “fellow officer rule” allowed Deputy Langlais to rely on the representations of Sergeant Page, who had firsthand knowledge of the events, to develop probable cause to make a lawful arrest of Emley for DUI.  See State, Department of Highway Safety and Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001)(holding that under the fellow officer rule, one law enforcement officer may develop probable cause to arrest based in part on facts know to another officer); State, Department of Highway Safety and Motor Vehicles v. Shonyo, 659 So.2d 352, 353 (Fla. 2d DCA 1995)(explaining that the fellow officer’s rule allows the arresting officer to assume probable cause to arrest the suspect exists when he or she relies upon representations of the officer who had firsthand knowledge of the events).  While there is not a Law Enforcement Oath form in the record from Sergeant Page, there is an Affidavit by Deputy Langlais swearing that the attached documents, including Sergeant Page’s Supplemental Report setting forth the basis for the traffic stop, are true and correct.  The hearing officer could make a determination that Emley was lawfully arrested for DUI based on these documents which were generated at the time of his arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). 

            Second, assuming Emley is correct in his assertion that the traffic citation shows an arrest time of 2:26 a.m. (the traffic citation is illegible), several minutes after the breath samples were taken at 2:14 a.m. and 2:18 a.m., the arrest report gives an arrest time of 1:32 a.m. and states that Deputy Langlais transported Emley to breath testing facility after his arrest.  The hearing officer, as the trier of fact, was in the best position to evaluate the conflicting evidence and the Court cannot substitute its judgment for that of the hearing officer.  See id. 

            In addressing the last issue, the Court finds that Emley failed to cite to any statutory or case law in support of his argument that the hearing officer is required to make specific findings in addressing issues raised during the formal review hearing.

 

 

           

            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 June 2006.

 

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

 

 

 

 

Copies furnished to:

Frank W. McDermott, Esquire

7116-A Gulf Boulevard

St. Pete Beach, FL  33706

 

Heather Rose Cramer, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, # 230

Lake Worth, FL  33467

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] The Court is dismayed that the Response filed by the Department focused on whether the DUI was invalid due to the officer’s failure to read the implied consent warning, an issue not raised by the Petitioner.