NOTICE: THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE REVIEW AND, IF FILED, DETERMINED
Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – probable cause – competent substantial evidence - decision to set aside license suspension for DUI not supported by competent substantial evidence – all record evidence indicated that the driver was operating motor vehicle under the influence of alcohol at the time on the single-vehicle accident – driver was the only person at the scene, had apparent injuries, exhibited several signs of impairment, and admitted to drinking alcohol - Petition granted. City of Treasure Island v. Dept. of Highway Safety and Motor Vehicles, No. 07-0016AP-88B (Fla. 6th Cir. App. Ct. Nov. 30, 2007).
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
A Florida Municipal Corporation,
vs. Appeal No. 07-0016AP-88B
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, City of
After a formal review hearing, the hearing officer entered its Final Order setting aside the license suspension of Schoen. The hearing officer concluded that there was insufficient evidence to support:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
The hearing officer made no other findings of fact, nor did the hearing officer expressly rule on the motions made by Schoen’s attorney during the review hearing seeking to strike those portions of the arrest narrative that were part of the accident report. Schoen’s attorney also argued that there was not evidence in the record to support a finding of probable cause.
The record shows that Officer Deshay, of the Treasure Island Police Department, was dispatched to the scene of a single car accident where a Dodge Stealth had crashed into a utility pole. Upon exiting his vehicle, Officer Deshay observed a white male walking away from the Dodge and called for him to return. The white male, later identified as Schoen, complied with the request. Officer Deshay observed that Schoen had injuries on his face and called for paramedics. Officer Deshay noticed a moderate odor of alcohol, that Schoen had bloodshot, watery eyes, and mildly slurred speech. Schoen explained that he was returning home from work when he swerved to avoid hitting a bicyclist. There was no bicyclist present or any witness who could verify Schoen’s statement. Officer Deshay noticed that the Dodge had no license tag and that a license tag was on the roof of the Dodge. Schoen admitted to ripping the tag off the back of the Dodge. Schoen would not explain why he did this. Officer Deshay ran the tag and discovered that it belonged to Schoen, but was registered to a Chrysler Station Wagon.
Officer Bock, also of the Treasure Island Police Department, and the paramedics arrived. The paramedics treated Schoen’s injuries, which included abrasions to his left cheek and nose. Schoen refused to be transported to the hospital and signed a waiver. Next, Schoen agreed to perform the HGN test at Officer Bock’s request. Schoen showed several signs of impairment and admitted to drinking alcohol. Officer Bock also observed that Schoen had the odor of alcohol, his speech patterns were confused, and he had trouble holding his head upright. Schoen refused to perform field sobriety tests and was arrested for DUI. Schoen refused to take the breath test, resulting in his license suspension. Schoen was also cited for careless driving and having no tag displayed.
this Court, the City argues that the hearing officer failed to observe the
essential requirements of law and that the Final Order is not supported by
competent substantial evidence. The
City also argues that it was not afforded due process in that no notice or
opportunity to be heard was provided to the City. In addressing these issues, the Court
reiterates that the hearing officer, as the fact-finder, was charged with
determining by a preponderance of the evidence that there was probable cause to
believe that Schoen was in actual physical control of a motor vehicle while
under the influence, that Schoen refused to submit to a breath, blood, or urine
test, and that Schoen was informed his driving privilege would be suspended for
one year for a first refusal and eighteen months for a second or subsequent
Initially, the Court finds that there
is no dispute that Schoen was informed of
Probable cause to justify an arrest
must be based on the totality of the facts and circumstances, as analyzed from
the officer’s knowledge and training, and is often a conclusion drawn from
reasonable inferences. See Department of Highway Safety and Motor Vehicles v.
Favino, 667 So.2d 305, 309 (Fla.1st DCA 1995). The law is well-settled that it is the hearing
officer’s responsibility to weigh the record evidence, assess the credibility
of the witnesses, resolve any conflicts in the evidence, and make findings of
fact. See id.; see also Department of Highway Safety
and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (
Without reweighing the evidence, the Court finds that the record evidence, including all reasonable inferences that can be drawn therefrom, supports only one conclusion, that there was probable cause that Schoen was operating a motor vehicle under the influence of alcohol. There is not a scintilla of evidence, competent, substantial, or otherwise, that supports the hearing officer’s finding that there was not probable cause. Therefore, under the facts of this case, the Court finds that certiorari relief must be granted.
While the Court needn’t address the
remaining issues, the Court finds that there is no statutory or code
requirement that the City be notified by the Department of a formal review
hearing or that the Department enter specific findings
of fact in sustaining or setting aside a license suspension.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed.
AND ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
PETER RAMSBERGER AMY M. WILLIAMS
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Maura J. Kiefer, Esquire
Walter L. Grantham, Jr., Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
 The City, on behalf of its police department, can appeal a decision of the Department pursuant to Florida Statutes, section 322.2615(13). This section states, in pertinent part: “A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari to the circuit court in the county wherein a formal or informal review was conducted.”
 Schoen received notice of this Petition but did not move to intervene.
 Schoen did not appear for the hearing and no other witnesses were called to testify.