Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test affidavit – findings of fact - nothing in record to rebut presumption that administered breath tests substantially complied with applicable regulations – Department did not receive presumption of impairment as breath test affidavit was defective because operator failed to sign – hearing officer could consider other documents in non-affidavit form in determining whether Petitioner had an unlawful alcohol level – hearing officer not required to make specific findings in ruling on issues raised during formal review hearing  - Petition denied. Stott v. Dept. of Highway Safety and Motor Vehicles, No. 06-0023AP-88B (Fla. 6th Cir. App. Ct. June 30, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

JAMES ALLEN STOTT,

                                    Petitioner,

 

vs.                                                                                               Appeal No. 06-0023AP-88B

                                                                                                   UCN522006AP000023XXXXCV

 

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.  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, James Allen Stott (Stott), seeks review of the Final Order of License Suspension, entered March 10, 2006, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), suspended Stott’s driving privilege for a period of six months for driving under the influence.  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Stott 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 January 11, 2006, at approximately 11:40 p.m., Deputy Hough of the Pinellas County Sheriff’s Office stopped and cited a vehicle for running a red light.  The driver, James Stott, had a strong odor of alcoholic beverage on his breath, his eyes were bloodshot and his speech was slurred.  Mr. Stott displayed further clues of impairment on the ensuing sobriety tests.  Mr. Stott was subsequently placed under arrest for DUI and transported to Central Breath Testing (CBT) at the county jail.  Once at CBT, Mr. Stott submitted to a breath test.  The results were .086g/210L and .080g/210L.  Mr. Stott’s driving privilege was suspended for driving with an unlawful breath alcohol level. 

 

At the conclusion of the formal review hearing, the hearing officer sustained Stott’s license suspension for a period of six months for DUI.

On appeal, Stott raises two issues:  (1) whether the breath test affidavit was defective because it was unsworn and there was not evidence that the breath test operator had a valid permit to conduct the breath test, and; (2) whether the hearing officer departed from the essential requirements of law by failing to make specific findings in ruling on issues raised during the formal review hearing.

            Initially, the Court finds that there is nothing in the record to rebut the presumption that the administered breath tests substantially complied with the applicable regulations.  See Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002)(providing that “[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid”).  Further, the hearing officer could make a determination that Stott was lawfully arrested for DUI based on the 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). 

            Without the breath test affidavit being notarized, it is defective such that the Department did not receive the benefit of the presumption of impairment that an affidavit normally affords.  See Fla. Stat. § 316.1934(5).  However, the hearing officer could consider other documents in non-affidavit form in determining whether Stott had an unlawful alcohol level.  See State, Department of Highway Safety and Motor Vehicles v. Anthol, 742 So.2d 813, 814 (Fla. 2d DCA 1999)(explaining that results of any breath or blood test are not required to be in affidavit form to be considered by a hearing officer in an administrative proceeding).  Deputy Hough’s Offense Report and the Intoxilyzer print-out are evidence that Stott’s alcohol level was over the legal limit.  These documents provide competent substantial evidence to support the hearing officer’s decision to sustain Stott’s license suspension and the Court cannot reweigh the evidence to arrive at a different conclusion.  See Satter, 643 So.2d at 695.

            In addressing the last issue, the Court finds that Stott 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