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 (Fla. 6th Cir. App. Ct. April 13, 2007).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

F. SCOTT CELLAMARE,

                        Petitioner,

 

vs.                                                                                                Appeal No. 06-0097AP-88A

                                                                                                    UCN522006AP000097XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        Respondent.

____________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI 

            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.

            The 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.[1]  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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

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 St. Pete Beach Police Department stopped Petitioner for failure to use [a] designated lane.  Upon making contact with Petitioner, the officer noted the odor of an alcoholic beverage coming from Petitioner’s breath.  He also observed the Petitioner’s eyes to be watery.  Petitioner was asked to exit the vehicle and perform standard field sobriety tests.  The results of those tests showed further indications of impairment and Petitioner was placed under arrest for DUI.  Petitioner was taken to [the] St. Pete Beach Police Department where he was asked to submit to a lawful breath test.  The Petitioner refused the test.  Petitioner was read implied consent but continued to refuse.

 

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.   

Before 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 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 Cellamare’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            Florida statutory and case law provides that the implied consent warning must be given before the driver is requested to submit to a breath test.  See Fla. Stat. §§ 322.2615(2),(7)(b)2.; see also Fla. Stat. § 316.1932(1)(a); Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002), Department of Highway Safety and Motor Vehicles v. Perry, 751 So.2d 1277, 1279 (Fla. 5th DCA 2000).  Otherwise, the driver is not knowingly refusing to submit to a breath test and the breath test refusal is invalid.  See id. 

            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.[2]  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.[3]  See id. (approving of Hall v. Department of Highway Safety and Motor Vehicles, 4 Fla. L. Weekly Supp. 208 (Fla. 18th Jud. Cir. July 9, 1996)); see also Department of Highway Safety and Motor Vehicles v. Farley, 633 So.2d 69, 71 (Fla. 5th DCA 1994); Hogan v. State, Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 529 (Fla. 9th Cir. App. Ct. Oct. 31, 2005).  Under the facts of this case, the Court finds that certiorari relief must be granted since there is not competent substantial evidence in the record to show that Trimble refused the breath test after being informed of the implied consent law.   

            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.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of April 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:

Bruce H. Denson, Esquire

700 Central Avenue, Suite 500

St. Petersburg, FL  33701

 

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



[1] 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.    

[2] There is no discrepancy with the dates in Cellamare’s case.

[3]  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 hearing.  See Fla. Admin. Code Rules 15A-6.010, 15A-6.011.  The record is silent as to whether Cellamare properly raised as an issue the sufficiency of the breath test refusal in his prehearing statement, so as to put the Department on notice that it may need to issue a subpoena for the appropriate officer to present live testimony (as permitted by Fla. Admin. Code Rule 15A-6.012(1)), and the Department did not argue this point in its Response.  The case law cited herein does not address the application of the procedural rules set forth in the Florida Administrative Code to such facts as set forth in this Petition and Trimble.