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

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

CITY OF TREASURE ISLAND,

A Florida Municipal Corporation,

                        Petitioner,

 

vs.                                                                                                Appeal No. 07-0016AP-88B

                                                                                                    UCN522007AP000016XXXXCV

 

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, City of Treasure Island (City),[1] seeks review of the Final Order on Results of Review Hearing, entered February 15, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), set aside the license suspension of John Thomas Schoen (Schoen).[2]  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether the City 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 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.[3]  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.

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

            Initially, the Court finds that there is no dispute that Schoen was informed of Florida’s implied consent law and that he refused to take the breath test.  The transcript shows that Schoen’s attorney did not object to the admissibility of any documents related to Schoen’s refusal.  Rather, the City focuses its primary argument on probable cause, asserting that the evidence presented to the hearing officer supports only one conclusion, that there was probable cause to believe that Schoen was operating a motor vehicle under the influence of alcohol.  This Court agrees.

            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 (Fla. 1st DCA 2002); Satter, supra.  This Court must determine whether there is competent substantial evidence in the record that supports the hearing officer’s conclusion.  See id.  Such evidence “must be based on something more than mere probabilities, guesses, whims, or caprice, but rather on evidence in the record that supports a reasonable foundation for the conclusion reached.”  See Trimble, supra.

            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.  See State, Department of Highway Safety and Motor Vehicles v. Porter, 791 So.2d 32, 35 (Fla. 2d DCA 2001).

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Final Order is quashed.

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

 

                                                            ______________________________

                                                            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

535 Central Avenue, Suite 412

St. Petersburg, FL  33701

 

Walter L. Grantham, Jr., Esquire

19887 U.S. Highway 19 North, Suite 105

Clearwater, FL  33764

 

Jason Helfant, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 



[1] 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.”

[2] Schoen received notice of this Petition but did not move to intervene.

[3] Schoen did not appear for the hearing and no other witnesses were called to testify.