Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – implied consent – breath
test – implied consent law must be given before driver is requested to submit
to breath test – documentary evidence submitted to hearing officer was
inconsistent about when implied consent warning was given – Department failed
to meet its burden to resolve discrepancies - Petition granted. Cellamare v. Dept. of Highway Safety and Motor Vehicles, No. 06-0097AP-88A
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
F. SCOTT CELLAMARE,
vs. Appeal No. 06-0097AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply. Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.
Petitioner, F. Scott Cellamare (Cellamare), seeks review of the Findings of
Fact, Conclusions of Law and Decision, entered December 6, 2006, in which the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
sustained Cellamare’s license revocation. In reviewing the Decision and the administrative
action taken by the Department, this Court must determine whether Cellamare 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, held on November 21, 2006, the hearing officer made the following findings of fact:
On October 13, 2006 Officer R. Weil of the
The record shows that no witnesses testified at the hearing. The hearing officer admitted several documents into evidence, including the traffic citation, the arrest narrative of Officer Weil, and the refusal affidavit completed by Officer Conroy, who had requested Cellamare to submit to a breath test. Counsel for Cellamare objected to the introduction of the refusal affidavit on the grounds that the officers failed to follow proper procedure and also made a motion to invalidate the license suspension for the officer’s failure to provide Cellamare with the opportunity to take the breath test after the implied consent warning was given. The hearing officer overruled the objection and denied the motion. The hearing officer sustained Cellamare’s driving privilege for DUI.
this Court, Cellamare argues that his license suspension should have been
quashed as it is a departure from the essential requirements of law and is not
support by competent substantial evidence due the officers’ failure to inform
Cellamare of the implied consent law prior to requesting a breath sample. 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 Cellamare was in actual physical
control of a motor vehicle while under the influence, that Cellamare refused to
submit to a breath, blood, or urine test after being requested to do so by an
officer, and that Cellamare was informed that his driving privilege would be
suspended for a period of one year for a first refusal or, in the case of a
second or subsequent refusal, for a period of eighteen months. See
Under similar facts as this case, the First District Court of Appeal in Trimble concluded:
The critical determination of when or whether the motorist was given the consent warning required by law as a predicate for the conclusion that she refused to submit to the test, thereby leading to a suspension of the license, was supported only by evidence that gives equal support to inconsistent references, and as such can hardly be deemed so sufficiently reliable that a reasonable mind would accept it as adequate to support the conclusion reached. The hearing officer’s finding that Trimble was given a consent warning before her refusal could have rested as much on the flip of a coin as on the documentary evidence submitted.
The facts analyzed in Trimble were: the refusal affidavit stated that Trimble was arrested for DUI at 11:40 p.m. on September 27, 2000; at 12:45 a.m., on September 27, 2000, a request was made for Trimble to submit to a breath test; the Breathalyzer print-out reflects a refusal at 12:47 a.m. on the 27th, and; the officer’s narrative states that the consent warning was given to Trimble at 12:50 a.m. on the 27th. See Trimble, 821 So.2d at 1086. In this case, the traffic citation shows that Cellamare was arrested for DUI at 10:28 p.m., on October 13, 2006. The arrest narrative states: “At 2229 hours [10:29 p.m.] Ofc Conroy started a (20) minute observation period of Cellamare. Cellamare refused to provide a breath sample and was read the implied consent warning by Ofc Conroy to which Cellamare stated he understood.” The refusal affidavit states that, at 10:30 p.m., Officer Conroy gave the implied consent warning and Cellamare refused the breath test.
Like Trimble, the documentary
evidence presented to the hearing officer showed inconsistencies as to when the
implied consent warning was given, particularly the arrest narrative that
states, “Cellamare refused to provide a
breath sample and was read the implied consent warning by Ofc Conroy to which
Cellamare stated he understood.” While
one may infer that Officer Conroy again requested Cellamare to take the breath
test after he read the implied consent, one can just as easily conclude, as the
arrest narrative seems to imply, that Cellamare was asked to take the breath test
just once, after which he was then informed of the implied consent
warning. Since Cellamare challenged the
breath test refusal, the burden was on the Department to provide live sworn
testimony to resolve the discrepancies. See id. (approving of Hall v.
Department of Highway Safety and Motor Vehicles, 4
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Findings of Fact, Conclusions of Law and Decision is quashed.
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:
Bruce H. Denson, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews
 The Court notes that the Department is using a different format for final orders entered after a formal review hearing. This new format, at least the one utilized in this case, does not provide whether it was the driver’s first or second refusal, nor the time period for the license suspension. It also does not state the date the review hearing was held, only the date the order was entered. Cellamare’s statement that the hearing was held on November 21, 2006, was undisputed by the Department.
 There is no discrepancy with the dates in Cellamare’s case.
 The record shows that Cellamare served the
Department, on the day of the hearing, November 21, 2006, with a Motion to
Invalidate Suspension. It is unclear
whether, prior to the filing of this Motion, the Department had notice that
Cellamare would be challenging the sufficiency of the breath test refusal. While a driver is not required to file a
motion in advance of the hearing, a driver is required to provide a prehearing
statement outlining all disputed issues of law and fact to be addressed at the