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 (Fla. 6th Cir. App. Ct. Feb. 7, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

JAMES DUGGAN,

                                    Petitioner,

 

vs.                                                                                               Appeal No. 06-0067AP-88A

                                                                                                   UCN522006AP000067XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                                    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 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 (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:

 

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.  See Fla. Stat. 322.2615(7)(b)1-3.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Duggan’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            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 Perry Court found that a separate refusal affidavit was not fatal to sustain a license suspension as long as the arrest affidavit stated that the implied consent warning was given and that the driver refused the breath test.  See id.  Likewise, in this case, the arrest affidavit of Officer Baar states that he read the implied consent rule to Duggan, informed Duggan that he would loose his driving privilege for one year for refusing, and again asked Duggan to provide a sample, but Duggan refused.  The Court finds that the arrest affidavit provides competent substantial evidence to support the hearing officer’s determination that there was a valid refusal.

            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.  See State, Department of Highway Safety and Motor Vehicles v. Jones, 935 So.2d 532, 534 (Fla. 3d DCA 2006)(explaining that the validity of a traffic stop depends on purely objective criteria); see also Finzio v. State, 800 So.2d 347, 349 (Fla. 4th DCA 2001)(stating that even when none of the facts standing alone would give rise to a reasonable suspicion, when taken together as viewed by an experienced deputy they can provide clear justification for a brief detention).  In determining whether an officer possesses a reasonable or well-founded suspicion of criminal activity so as to justify an investigatory stop, “the totality of the circumstances—the whole picture—must be taken into account.”  See Tamer v. State, 484 So.2d 583, 584 (Fla. 1986); State v. Pye, 551 So.2d 1237, 1238 (Fla. 1st DCA 1989); State v. Kibbee, 513 So.2d 256, 258 (Fla. 2d DCA 1987).  Further, Officer Baar could pursue and stop Duggan based on his visual and aural perceptions.  See State v. Joy, 637 So.2d 946, 947-48 (Fla. 3d DCA 1994).

            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.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2007.

 

 

                                                         ________________________________

                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Marc N. Pelletier, Esquire

877 Executive Center Dr. W., 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