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Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent warning – inconsistencies in the evidence – Florida Statutes, section 316.1932(1)(a), requires that the implied consent warning be given before driver is requested to submit to a breath test – when the testimony and evidence presented to the hearing officer gives equal support to inconsistent references, there is not competent substantial evidence to support a valid refusal – documents and testimony of officers were inconsistent as to when implied consent warning was given - Petition granted. Ojiem v. Dept. of Highway Safety and Motor Vehicles, No. 07-0059AP-88B (Fla. 6th Cir. App. Ct. March 26, 2008).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

ABSALOM OJIEM,

                        Petitioner,

 

vs.                                                                                                Appeal No. 07-0059AP-88B

                                                                                                    UCN522007AP000059XXXXCV

 

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 briefs, the record, and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Absalom Ojiem (Ojiem), seeks review of the Findings of Fact, Conclusions of Law and Decision, entered September 7, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained the suspension of his driving privilege for driving under the influence.  The standard of review is whether the petitioner 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).

After a formal review hearing, the hearing officer made the following findings of fact:

On July 18, 2007, the petitioner was operating a motor vehicle.  Officer Anthony Citrano of the Largo Police Department arrived and made contact with the petitioner.  Officer Citrano smelled a strong odor of an alcoholic beverage on the petitioner’s breath and noticed that his eyes were watery and bloodshot and that he was unsteady on his feet.  Officer Citrano asked the petitioner to perform Field Sobriety Task [sic] of which he performed poorly and was subsequently arrested for DUI.  The petitioner was transported to jail and was read implied consent.  The petitioner refused to submit to a breath test.

 

The record shows that Officer Leuallen, of the Largo Police Department, stopped a black Dodge vehicle after observing the Dodge traveling erratically without its headlights on.  Officer Leuallen made contact with the driver, identified as Ojiem, and noticed that Ojiem smelled of alcohol, that his eyes were glassy, and that he was not alert.  As Ojiem looked for his driver’s license, Officer Leuallen had to instruct him to put his vehicle in park and shut the vehicle off as it began to roll backwards.  Ojiem did not realize he was driving without his headlights on.  Officer Citrano was then called to conduct a DUI investigation.  As soon as Officer Citrano approached Ojiem, Ojiem requested an attorney.  Officer Citrano explained that he was only going to ask Ojiem a few questions.  Ojiem needed assistance to get out of his vehicle, almost losing one of his shoes.  Ojiem again asked for an attorney to which Officer Citrano responded that he was not entitled to an attorney before performing the field sobriety tests.  Ojiem had difficulty understanding the “walk and turn” and did not to perform this task.  Ojiem performed the remaining tasks poorly and was placed under arrest for DUI.

            Officer Citrano’s Narrative states that, while he was walking Ojiem over to his cruiser, he requested him to provide a breath sample to which Ojiem once again stated that he wanted an attorney and did not understand the request.  Ojiem became hostile and the taser was used three times before Ojiem was secured and then transported to the central breath testing facility.  The Narrative explains:  “Once on scene at Central Breath Testing Facility the subject again refused to provide a breath sample.  The subject was read Implied Consent and I filled out the appropriate documentation, following all state guidelines, department policies and procedures.”  Because of chest pains, Ojiem was taken to Largo Medical Center for evaluation.  The treating physician determined that there was not a medical emergency and Ojiem was returned to the Pinellas County Jail.  Ojiem was issued a citation for DUI and for driving without headlights.

            At the review hearing, several documents were admitted into evidence.  Officer Leuallen’s citation for driving without headlights indicates that Ojiem committed the infraction at 10:02 p.m.  Officer Citrano’s Arrest Affidavit shows that Ojiem was arrested at approximately 2102, or 9:02 p.m.  The Vital Signs document, offered into evidence by Ojiem during the review hearing, shows that Ojiem’s vital signs were first recorded at 8:51 p.m. and last recorded at 1:25 a.m.  The Breath Alcohol Test Affidavit shows that the observation period began at 2201, or 10:01 p.m.  The Affidavit of Refusal to Submit to Breath, Urine, or Blood Test shows that Ojiem was arrested at approximately 2148, or 9:48 p.m. and that, at 2231, or 10:31, Ojiem was informed of the implied consent warning and refused the breath test. 

            At the hearing, Officer Leuallen testified that she stopped Ojiem at approximately 9:30 p.m., the time given in her Supplemental Narrative. Office Leuallen remembered Officer Citrano taking out the implied consent card and reading it to Ojiem in front of the camera in his cruiser before Ojiem was transported to the breath testing facility.[1]  Officer Leuallen first testified that she could not recall if the consent warning was read before or after Officer Citrano asked Ojiem to submit to a breath test.  Officer Leuallen then testified that the request to take the breath test was prior to Ojiem being placed under arrest for DUI and that Ojiem asked for an attorney a second time after being stunned by the taser.

Officer Citrano testified that he read the implied consent warning twice to the Petitioner:

I read implied consent twice, in the field on video and once we get [sic] to the central breath testing when the instrument is ready and they’re finally able to give a sample.  If they refuse, I read them implied consent as I mark refusal.  It is actually done twice. 

 

Officer Citrano explained that he read Ojiem implied consent at the location of the traffic stop after Ojiem was placed under arrest for DUI, but that he did not put it in his report.  Ojiem did not explicitly refuse to take the breath test, rather “kept saying he wanted a lawyer,” which Officer Citrano took as a refusal.  Officer Citrano also testified that Ojiem, who is a citizen of Kenya, appeared to understand what he was saying and that he learned that Ojiem has resided in the United States for nine years, has an American wife, and is taking college courses with English as his primary language.

            After the officers testified, the formal review hearing was continued so that Ojiem could testify.  Ojiem testified that he was asked to submit to a breath test after he finished the field sobriety tests.  Ojiem did not understand the request and he wanted to speak with an attorney.  Ojiem stated that he was not informed of implied consent.  About 20 minutes after he arrived at the central breath testing facility, Ojiem was taken to Largo Medical Center.  Ojiem was not asked to provide a breath sample before being taken to the hospital.  Once at the hospital, Ojiem was observed and his vital signs were taken.  Ojiem left the hospital around 1:30 a.m. and returned to the breath testing facility.  Ojiem was not asked to submit to a breath test again.

            Before this Court, Ojiem argues that the Department erred in not setting aside his license suspension as the record lacks competent substantial evidence that Ojiem refused the breath test after being informed of the implied consent law.    Under the facts of this case, the Court finds that certiorari relief must be granted as the evidence and testimony are inconsistent as to when the implied consent warning was given.  The implied consent warning must be given before the driver is requested to submit to a breath test.  See Fla. Stat. § 316.1932(1)(a); see also Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002).  As analyzed by the First District Court of Appeal in Trimble: 

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.[2]

 

            The issue presented in this case was addressed by this Court in Cellamare v. State, Department of Highway Safety and Motor Vehicles, 14 Fla. L. Weekly Supp. 908 (Fla. 6th Cir. App. Ct. April 13, 2007), wherein the Court relied on Trimble in concluding that the order of license suspension had to be quashed since there were inconsistencies as to when the implied consent warning had been given.  The Court found the burden was on the Department to provide live sworn testimony to resolve any discrepancies in the evidence.  

            Unlike Cellamare, there was live sworn testimony presented by Officer Leuallen and Officer Citrano.  However, their testimony was conflicting and did not resolve the issue of when the implied consent warning was given to Ojiem.  Even excluding the vital signs document, the evidence and testimony presented gave equal support to inconsistent references.  Therefore, like Cellamare and Trimble, there is not competent substantial evidence to support a valid refusal. 

           

 

 

 

 

            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 St. Petersburg, Pinellas County, Florida this ______ of March 2008.

 

 

           

                                                            ______________________________

                                                            AMY M. WILLIAMS

                                                            Circuit Judge, Appellate Division

 

 

 

 

_______________________                                      _____________________________

PETER RAMSBERGER                                        J. THOMAS McGRADY

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Ricardo Rivera, Esquire

250 N. Belcher Road, Suite 102

Clearwater, FL  34625

 

Thomas C. Mielke, Assistant General Counsel

DHSMV, Legal Department – Room A-432

2900 Apalachee Parkway

Tallahassee, FL  32399

 

Bureau of Administrative Reviews

4585 - 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] The record shows that both Officer Leuallen and Officer Citrano recorded the stop and arrest of Ojiem.  Neither video was admitted into evidence and so is not included in the appendices.   

[2] 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.