Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVERíS LICENSES- hearing officer charged with resolving time discrepancies between breath test affidavit and arrest affidavit as to when Petitioner was arrested  - Petition denied. Stafisz v. State of Florida, DHSMV,(Fla. 6th Cir. App. Ct. June 20, 2006).









††††††††††† Petitioner,


vs.†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No: 51-2006-CA-754WS











††††††††††† THIS CAUSE came before the Court on the Petition for Writ of Certiorari andthe Response to Petition for Writ of Certiorari. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

††††††††††† In reviewing the Departmentís order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential requirements of law had been observed, and (3) whether the administrative findings and judgment were 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).

Following petitionerís arrest for driving under the influence, the petitioner requested a formal administrative review of his license suspension. A formal review was held for that purpose and the hearing officer who presided over the case made the following findings of fact:


On November 14, 2005, at 10:08 P.M. Officer Denton of the New Port Richey Police Department, was approached from the rear by a vehicle at a high rate of speed and failing to maintain a single lane.Officer Denton had to take evasive action to avoid a crash.The vehicle passed the officer and then slammed on its brakes to avoid hitting another vehicle.A traffic stop was conducted and the driver was identified as [Petitioner].


[Petitioner] exhibited signs of intoxication; a strong odor of an alcoholic beverage, bloodshot and watery eyes, slurred speech and he admitted drinking.[Petitioner] refused to perform any of the Field Sobriety Exercises.


At 10:12 p.m., Officer Denton arrested [Petitioner] for DUI and read Implied Consent.[Petitioner] refused to submit to a breath test and his privilege to drive was suspended for his refusal.


The court referred to petitionerís motions to invalidate the suspension in which he argued: (1)Inconsistencies in the report regarding the time of arrest and the time of the request for the breath test and (2) [Petitionerís] inability to submit to a breath test due to his unusually strong gag reflex, and denied them both. Petitionerís license suspension was upheld.

Petitioner argues that the record is unclear as to the sequence of events after a DUI investigation was conducted.According to the DHSMV Affidavit of Refusal to Submit to Breath Urine or Blood Test, Denton informed the Petitioner of the Implied Consent Statute at 10:10 pm. As noted in the Affidavit, Patrolman Dentonsí request for petitioner to submit to a breath, urine or blood test to determine the content of alcohol in his blood, occurred prior to him being placed under lawful arrest.The affidavit states that he was placed under arrest at 10:12 p.m. The time of arrest of 10:12 p.m. is further corroborated by the Pasco County Complaint Affidavit.At the top left portion of the Complaint Affidavit, the date of arrest is stated as 11/14/2005 with a time of arrest of 10:12.Adding further confusion to the timing of events is the statement in the Pasco County Complaint Affidavit that on November 4, 2005, at 8:05 p.m., Patrolman Denton conducted the initial traffic stop.The time of 8:05 p.m. is directly contradicted by both the citation issued to the petitioner for careless driving, and the New Port Richey Police Departmentís DUI Investigation Case Report. Both of those documents indicate the time of the incident as 10:08 p.m.

As petitioner correctly argues, the time the Implied Consent was read to petitioner is critically important in this case since Florida Statute 316.1932 requires the test be incidental to a lawful arrest. Officer Dentonís Probable Cause Affidavit, however, clearly indicates that the defendant was placed under arrest before the officer read him implied consent and requested the defendant, several times, to submit to a breath test. Where there is competent evidence to support the hearing officerís findings, this Court must affirm.It is neither the function or the prerogative of a circuit court to reweigh evidence and make findings when it undertakes a review of a decision of an administrative forum.State of Florida, Department of Highway Safety and Motor Vehicles v. Allen, 539 So. 2d 20 (Fla. 5th DCA 1989).It is the hearing officerís responsibility as trier of fact to weigh the record evidence, assess the credibility of the witnesses, resolve any conflicts in the evidence and make findings of fact. Id.


Therefore, it is,

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

††††††††††† DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of June,2006.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† W. Lowell Bray, Circuit Judge

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Primary Appellate Judge




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††† __________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Daniel D. Diskey

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Stanley R. Mills

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† †††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

Copies furnished to:

Curtis M. Crider, Esq.

Carlos J. Raurell, Esq.