Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – the petitioner was afforded procedural due process, the essential requirements of the law were observed, and the hearing officer’s findings and judgment were supported by competent substantial evidence.  Accordingly, petition denied. Thomas v. DHSMV, No. 08-0008AP-88B (Fla. 6th Cir.App.Ct. Sept. 22, 2008).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

MICHAEL H. THOMAS                                          APPEAL No.: 08-00008AP-88B

            Petitioner,                                                        UCN522008AP000012XXXXCV

 

 

v.

 

 

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 Petitioner, Michael H. Thomas’ Petition for Writ of Certiorari. Respondent, “DHSMV” filed their response on April 30, 2008 and Petitioner replied on May 20, 2008. Upon consideration, this Court finds that the Petition for Writ of Certiorari must be denied as set forth below.

            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).

            This appeal stems from the suspension of Petitioner’s driver license after his arrest for driving under the influence on January 9, 2008.  Thomas contends that the DHSMV departed from essential requirements of law by entering its final order.  The Findings of Fact, Conclusions of Law dated February 19, 2008 was based on an administrative hearing held on February 13, 2008. The issues presented at the administrative hearing included 1) whether the law enforcement officer had probable cause to believe that Petitioner was driving or in actual physical control of a motor vehicle while under the influence; 2) whether Petitioner refused to submit to a urine test or a breath test or a blood test after being requested to do so; and 3) whether Petitioner was told that if he refused to submit to such test his privilege to operate a motor vehicle would be suspended for a year or in the case of a subsequent refusal, for a period of eighteen months.

            The Field Officer found that on January 9, 2008, Thomas was operating a motor vehicle and that Officer Weiskopf arrived and made contact with Thomas and noticed his eyes were glassy, watery and bloodshot, his speech was slurred and thick-tongued and he was unsteady on his feet. Officer Weiskopf asked petitioner to perform a Field Sobriety test, which Thomas performed poorly. Thomas was then arrested and transported to jail, wherein he refused to submit to a urine test.

             Thomas argued on the administrative level and in his Petition there is a hopeless conflict in the evidence, specifically that Officer Collins was the only Officer to see the vehicle in motion and identify the driver as someone other than Thomas. Officer Collins, however, turned over the DUI investigation to responding officers, including Officer Weiskopf who found there was probable cause to believe that Thomas was driving or in actual physical control of a motor vehicle while under the influence.  

            Second, Thomas argues that DHSMV improperly considered unsworn reports that should not have been admitted into evidence or considered by the hearing officer, specifically DDL #7, #8 and #9, as these documents were not included in the law enforcement officer’s oath form. This objection was made at the administrative hearing by Petitioner’s counsel and considered by the hearing officer.

            The determination for this Court is whether Thomas was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s findings and judgment was supported by competent substantial evidence. The Court finds that Thomas was afforded procedural due process and the DHSMV observed the essential requirements of law.  More importantly, this Court holds the hearing officer’s findings of fact and conclusions of law dated February 19, 2008 was supported by competent substantial evidence.

            Therefore, it is,

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

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of September, 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, Esq., 250 North Belcher Road, Suite 102, Clearwater, Florida 33765

State of Florida, DHSMV, 2814 East Hillsborough Avenue, Tampa, Florida

Bureau of Administrative Reviews, 4585 140th Avenue North, Suite 1002, Clearwater, Florida 33762

Thomas C. Mielke, DHSMV, 2515 W. Flagler Street, Miami, Florida 33135