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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
VICKI GAYLE BROOKS,
vs. Appeal No. 07-0023AP-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
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.
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 (
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.
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
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 (
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 (
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), 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. 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.
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:
Craig Epifanio, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews