Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – probable cause – implied
consent warning – officer’s “pace” of vehicle driving 50 m.p.h. in a 35 m.p.h.
zone, coupled with observation of Petitioner driving in middle turn lane for
two blocks, established objective basis to conduct traffic stop – the lack of a
separate refusal affidavit is not fatal to sustain license suspension where
arrest affidavit stated that implied consent warning was given and driver
refused - Petition denied. Duggan v. Dept. of Highway Safety and Motor
Vehicles, No. 06-0069AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 06-0067AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
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.
Petitioner, James Duggan (Duggan), seeks review of the Final Order of License Suspension,
entered September 20, 2006, in which the Respondent, Department of Highway
Safety and Motor Vehicles (Department), sustained Duggan’s license revocation
for a period of one year. In reviewing
the Final Order and the administrative action taken by the Department, this
Court must determine whether Duggan 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 (
After a formal review hearing, the hearing officer made the following findings of fact:
On August 12th, 2006 at approximately 10:41 p.m., Officer Baar of the St. Pete Police Department stopped James Duggan for speeding (50 mph in a posted 35 mph zone). Mr. Duggan had a strong odor of an alcoholic beverage coming from his breath, his eyes were watery and his speech was slurred and slow. Mr. Duggan was unsteady on his feet.
Mr. Duggan displayed further clues of impairment on the ensuing sobriety tests. He was subsequently placed under arrest for DUI and transported to the police station. Once at the station, Mr. Duggan was read Implied Consent and asked to submit to a breath test. Mr. Duggan refused. Mr. Duggan’s driving privilege was suspended for the refusal.
The record shows that no witnesses testified at the hearing. The hearing officer
admitted several documents into evidence, including the arrest narrative of Officer Baar. The hearing officer denied two motions to invalidate the license suspension because there was no refusal affidavit and there was a lack of probable cause for the traffic stop. The hearing officer concluded that Duggan’s driving privilege was properly revoked for a period of 12 months for a first refusal.
Before this Court,
Duggan argues that the Department should have invalidated his license
suspension because there was not evidence to show that Duggan was read a full
and complete implied consent warning and because there was a lack of probable
cause to stop Duggan. Initially, the
Court finds that the hearing officer was charged with determining, by a
preponderance of the evidence, that there was probable cause to believe that
Duggan was in actual physical control of a motor vehicle while under the
influence, that Duggan refused to submit to a breath, blood, or urine test, and
that Duggan was informed that his driving privilege would be suspended for a
period of 12 months for a first refusal.
In addressing the first issue, the Department
of Highway Safety and Motor Vehicles v. Perry, 751 So.2d 1277, 1280 (Fla.
5th DCA 2000), squarely holds that: “Like the Miranda
warnings, the implied consent warnings are standard instructions which can
be identified in an affidavit by simple reference.” The
In addressing the second issue, Duggan asserts that Officer Baar pacing Duggan traveling at a speed of 50 m.p.h. in a 35 m.p.h. zone is insufficient to establish probable cause. However, in addition to the “pace” in which Officer Baar concluded Duggan was traveling “no less than” 50 m.p.h., the arrest narrative also states that Officer Baar observed Duggan turn onto Gulf Boulevard, from the east side of the road, and drive southbound in the middle turn lane for two blocks, even though there was plenty of space for Duggan to merge into a regular lane of traffic. Further, after Officer Duggan activated his overhead lights, with occasional siren bursts, it took Duggan about two and half blocks to stop.
While no individual factor, standing
alone, would support the traffic stop, the Court finds that the totality of
Officer’s Baar’s observations provided an objective basis to stop Duggan.
The Court concludes that the totality of the circumstances justified the traffic stop of Duggan. The Court is prohibited from reweighing the evidence or substituting its judgment for that of the hearing officer. See Dept. of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997); Satter, 643 So.2d at 695. Accordingly, certiorari relief must be denied. Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
GEORGE M. JIROTKA CYNTHIA J.
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