Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – documents submitted to hearing officer – actual physical control – driver waived issue of admissibility when she failed to object during the formal review hearing – reports were properly notarized and could be considered by hearing officer – Florida Statutes, section 322.2615(2), does not require the arresting officer to provide a narrative of events surrounding the arrest – competent substantial evidence in the record supported hearing officer’s finding of probable cause – the Court no longer has jurisdiction to review the lawfulness of the traffic stop - Petition denied. Brooks v. Dept. of Highway Safety and Motor Vehicles, No. 07-0023AP-88B (Fla. 6th Cir. App. Ct. Sept. 18, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

VICKI GAYLE BROOKS,

                        Petitioner,

 

vs.                                                                                                Appeal No. 07-0023AP-88B

                                                                                                    UCN522007AP000023XXXXCV

 

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, Vicki Gayle Brooks (Brooks), seeks review of the Findings of Fact, Conclusions of Law and Decision (Order), entered April 4, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), revoked Brooks’ driving privilege for driving under the influence (DUI).  In reviewing the Order and the administrative action taken by the Department, this Court must determine whether the driver 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 March 3, 2007, Deputy Burnham stopped a vehicle driven by Vicki G. Brooks for speeding.  As he spoke with Ms. Brooks, Deputy Burnham smelled a very distinct odor of an alcoholic beverage on her breath, her balance was poor, her eyes were bloodshot and watery, her speech was slurred, she swayed as she stood, and she staggered as she walked.  Deputy Burnham asked Ms. Brooks to take some Field Sobriety Exercises but she refused.  Based on the circumstances, Deputy Burnham arrested Ms. Brooks for DUI. Ms. Brooks was read Implied Consent Warnings and asked to take a lawful test.  Ms. Brooks refused to take the test. 

 

In addition to the DUI, Deputy Burnham issued a citation for speeding, which states, “SPEEDING – TOO FAST FOR CONDITIONS MISTING ON WET ROADS 50 MPH IN 35 MPH,” and an additional citation for failing to maintain a single lane, which states, “LANE – FAILURE TO DRIVE WITHIN SINGLE LANE CROSSED OVER WHITE LINE.”  Deputy Burnham completed an Affidavit of True Copy, which was attached to the citations and Offense Report, with the Case No. 07-059790.  The Offense Report does not contain a narrative or any details setting forth the basis for the traffic stop of Brooks. 

            Counsel for Brooks moved to invalidate Brook’s license suspension on the basis that there was not competent substantial evidence in the record to support the finding that Brooks was in actual physical control of a motor vehicle.  The hearing officer denied the motion and sustained Brook’s license suspension for refusing to submit to a breath test.

Before this Court, Brooks argues that the documents submitted to the hearing officer were insufficient and there were missing documents that should have been presented to the hearing officer.  Brooks also argues that there is not competent substantial evidence to support the Department’s finding that Brooks was in actual physical control of a motor vehicle.  Initially, the Court reiterates that the hearing officer was charged with determining, by a preponderance of the evidence, that there was probable cause to believe that Brooks was in actual physical control of a motor vehicle while under the influence, that Brooks refused to submit to a breath, blood, or urine test, and that Brooks was informed her 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)1-4.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Brook’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 raised by Brooks, the transcript of the formal review hearing shows that Brooks did not object to the admission of documents considered by the hearing officer.  See Stueber v. Gallagher, 812 So.2d 454, 456-57 (Fla. 5th DCA 2002).  In any case, there is no evidence that Deputy Burnham did not swear under oath to the statements he made in the Complaint/Arrest Affidavit and attached reports.  The record shows that Deputy Nellengady notarized Deputy Burnham’s Affidavit of True Copy, attesting to the truthfulness of Offense Report No. 07-59780, in compliance with Florida Statutes, section 117.10.  Further, while Deputy Burnham failed to include a narrative of events or specific facts leading up to the traffic stop or arrest, it cannot be said that the affidavit submitted by Deputy Burnham is fatally defective or insufficient as a matter of law. 

            Florida Statutes, section 322.2615(2), requires that an officer forward to the Department “an affidavit stating the grounds for belief that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages.”  This section does not require that an officer provide a narrative of events or set forth any details.  The citations that were issued indicate that Brooks was stopped for speeding and failing to maintain a single lane, both unlawful activities on their face.  In addition to the citations, the Complaint/Arrest Affidavit states that Brooks was stopped for speeding.  (Brooks did not file a Reply to the Department’s assertion that the Complaint/Arrest Affidavit, which is illegible, states this).  All of these documents were encompassed within Deputy Burnham’s Affidavit of True Copy, which could be considered by the hearing officer during the formal review hearing in determining whether Brooks was unlawfully operating a motor vehicle.

            Brooks next argues that there is not competent substantial evidence in the record to support the hearing officer’s conclusion that there was probable cause to believe that Brooks was in actual physical control of a motor vehicle under the influence of alcohol.  Probable cause to justify an arrest must be based upon 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).  Competent substantial evidence is substantial and relevant evidence in the record that supports the conclusion reached.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002).  Such evidence “must be based on something more than mere probabilities, guesses, whims, or caprice.”

            In this case, Deputy Burnham affirmatively checked off several boxes on the Field Sobriety Test Form, including that Brooks’ eyes were bloodshot and watery, her speech was slurred, and that she staggered and swayed upon exiting her vehicle.  The Court finds that all these factors, taken together with Deputy Burnham’s observations that Brooks was speeding and did not maintain a single lane, support the hearing officer’s conclusion that Brooks was in actual physical control of a motor vehicle under the influence of alcohol.  This Court is not permitted to reweigh the evidence.  See Satter, 643 So.2d at 695. 

            Further, as pointed out by the Department, Florida Statutes, section 322.2615(7), upon which the hearing officer made his findings, was substantially revised, effective October 1, 2006.  The Legislature completely deleted subsection (7)(b)(2),[1] which required the hearing officer to determine whether or not the driver had been lawfully arrested.  Prior to this change, the lawfulness of the traffic stop was an intrinsic aspect of determining whether the driver had been lawfully arrested.  See Schwartz v. State, Department of Highway Safety and Motor Vehicles, 920 So.2d 664, 665 (Fla. 3d DCA 2005)(explaining that issues related to the lawfulness of the stop are resolved under the issue concerning the lawfulness of the arrest)(citing State, Department of Highway Safety and Motor Vehicles v. DeShong, 603 So.2d 1349, 1351 (Fla. 2d DCA 1992)).  Also notable are the changes the Legislature made to the Florida Administrative Code, Rule 15A-6.013(2), wherein the hearing officer now “may consider any report or photocopies of such report submitted by a law enforcement officer,” as opposed to the previous version that stated the hearing officer shall consider such documents, including a specific list of supporting documentation that the Department was required to submit for a formal review hearing.  (emphasis added).

            These changes dramatically limit this Court’s review of Brooks’ license suspension.[2]  Clearly, the amendment to the statute permits administrative suspension of drivers’ licenses notwithstanding the unlawfulness of police conduct.  Indeed, it appears that even if an officer stops a vehicle without any grounds whatsoever, the driver’s license would still be subject to suspension if the driver had sufficient indicia of impairment.  Given that development and the record, the Court cannot grant certiorari relief.

 

 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of September 2007.

 

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                    AMY M. WILLIAMS

Circuit Judge, Appellate Division                                           Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Craig Epifanio, Esquire

5445 – 16th Street North

St. Petersburg, FL  33703

 

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

Clearwater, FL  33762



[1] The other three factors remained essentially the same and were renumbered accordingly.

[2] Counsel for Brooks did not argue the lawfulness of the traffic stop, presumably due to the statutory changes.