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Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – accident report privilege – actual physical control – accident report privilege set forth in Florida Statutes, section 316.066(7), has been abrogated by section 322.2615(2) – section 322.2615(2) states that a crash report shall be considered by the hearing officer – probable cause of actual physical control established by driver’s admission that he drove his truck into the ditch in addition to officer’s observations at the scene of the single car accident – driver had watery and bloodshot eyes, smelled of alcohol, and had fresh dirt on his arms - Petition denied. Juettner v. Dept. of Highway Safety and Motor Vehicles, No. 07-0061AP-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

RANDAL JUETTNER,

                        Petitioner,

vs.                                                                                                Appeal No. 07-0061AP-88B

                                                                                                    UCN522007AP000061XXXXCV

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

            The Petitioner, Randal Juettner (Juettner), seeks review of the Findings of Fact, Conclusions of Law and Decision, entered September 17, 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, held on September 14, 2007, the hearing officer made the following findings of fact:

On July 30, 2007, the petitioner was in physical control of a vehicle as a result of a traffic crash.  Upon contact with the petitioner Officer William Hodgson of the Clearwater police Department noticed that the petitioner had bloodshot watery eyes and an odor of an alcoholic beverage was coming from his breath and that his speech was slurred.  The petitioner was asked to perform Field Sobriety Tasks of which he performed poorly and was subsequently arrested for DUI.  The petitioner was transported to jail where he took a breath test of which the results were .188 g/210L and .174 g/210L.

The record shows Officer Hodgson was dispatched to the scene of a single car accident where a truck had left the roadway and come to rest in a ditch along U.S. Highway 19.  The driver of the truck was not at the scene.  Officer Parco, also of the Clearwater Police Department, was looking for the driver when he observed a white male, identified as Juettner, walking along U.S. Highway 19, just outside the Oasis Bar.  Juettner stated to Officer Parco:  “I’m looking for my truck.  Someone took my truck.  It was parked outside the bar and now it’s gone.”  Officer Parco smelled a strong odor of alcohol.

            Officer Hodgson met Officer Parco and drove Juettner back to the truck, which was still in the ditch.  Officer Hodgson noticed that Juettner had fresh dirt on his arms and a considerable amount of smudged dirt on his right forearm.  Officer Hodgson asked Juettner about the set of keys clipped to his belt loop and Juettner responded that the keys were to the truck.  Juettner then explained how he’d lost control of the truck and left to go get help.  Officer Hodgson observed several signs of impairment, including that Juettner’s eyes were bloodshot and watery and that he smelled of alcohol.  Juettner’s eyes showed six clues of impairment and Juettner failed the field sobriety tests.  Juettner was then arrested for DUI.  The results of the subsequent breath tests showed that Juettner’s breath alcohol level was .188 and .174.

At the conclusion of the formal review hearing, counsel for Juettner moved to invalidate the license suspension based on inadmissible evidence contained in the accident report and because there was a lack of evidence showing actual physical control.  The hearing officer denied these motions and sustained Juettner’s license suspension.

Before this Court, Juettner argues that the Department erred in not setting aside his license suspension as the hearing officer improperly relied on privileged information set forth in the accident report and, without the accident report, there is no evidence of actual physical control.  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 Juettner was in actual physical control of a motor vehicle while under the influence and whether Juettner was driving with an unlawful breath alcohol level of .08 or higher.  See Fla. Stat. 322.2615(7)(a)1-2.  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Juettner’s arrest.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).   

            In addressing the primary issue, recent statutory changes to Florida Statutes, section 322.2615, have abrogated the accident privilege set forth in section 316.066(7).[1]  Effective October 1, 2006, section 322.2615(2) states:  “Notwithstanding s. 316.066(7), the crash report shall be considered by the hearing officer.”  Thus, as this Court recently found in Cram v. Department of Highway Safety and Motor Vehicles, Appeal No. 07-0051AP-88B ( Fla. 6th Cir. App. Ct. Jan. 17, 2008), the accident privilege in section 316.066(7) is no longer applicable in administrative license suspension hearings.  See also McLaughlin v. Department of Highway Safety and Motor Vehicles, 14 Fla. L. Weekly Supp. 1084 ( Fla. 10th Cir. App. Ct. Sept. 18, 2007).   

            Along with Juettner’s admission that he drove his truck into the ditch, the record contains competent substantial evidence to establish probable cause that he was in actual physical control of a motor vehicle while under the influence of alcohol.  Officer Hodgson observed several signs of impairment, including that Juettner’s eyes were bloodshot and watery and that he smelled of alcohol.  Officer Hodgson also noticed fresh dirt on Juettner’s arms.  Taken together, these facts support the hearing officer’s finding of probable cause.  See Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(explaining that probable cause exists, “where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed”); see also Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same). 

            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 ______ 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:

Dean G. Tsourakis, Esquire

29605 U.S. Highway 19 N., Suite 110

Clearwater, FL  33761

Heather Rose Cramer, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, # 230

Lake Worth, FL  33467

Bureau of Administrative Reviews

4585 - 140th Avenue North, Suite 1002

Clearwater, FL  33762



[1] Florida Statutes, section 316.066(7), states, in pertinent part: “Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting.  No such report or statement shall be used as evidence in any trial, civil or criminal.”