Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES Suspension Where results of one breath test showed unlawful blood alcohol level and results of another breath test showed lawful blood alcohol level, hearing officer was allowed to consider totality of evidence in determining whether driver was driving with unlawful blood alcohol level Physical manifestations of impairment coupled with higher breath test result were sufficient to permit hearing officer to find by preponderance of evidence that licensee was driving with unlawful blood alcohol level. Petition denied.  Cruz v. Department of Highway Safety and Motor Vehicles, No. 09-000028AP-88B (Fla. 6th Cir. App. Ct. August 3, 2010).










                  Petitioner,                                                         Ref. No.:  09-000028AP-88B

v.                                                                                          UCN:  5220009AP000028XXXXCV



SAFETY AND MOTOR VEHICLES,                         






THIS CAUSE is before the Court on an Amended Petition for Writ of Certiorari filed by Petitioner Raymond Cruz on March 20, 2009.  Upon consideration, this Court finds that the amended petition is hereby denied.

            Petitioner was arrested by Officer Carl Carbaugh on January 22, 2009, and charged with driving under the influence (“DUI”).  Officer Carbaugh indicated that he detected the odor of an alcoholic beverage on Petitioner, Petitioner admitted to drinking alcohol, and Petitioner performed poorly on the field sobriety tests.  Petitioner was arrested and transported to the Largo Police Department, where he submitted two breath samples indicating breath alcohol content of .083g/210L and .081g/210L.  The control tests run before and after Petitioner’s breath samples read 0.083g/210L.  Respondent Department of Highway Safety and Motor Vehicles (“DHSMV”) administratively suspended Petitioner’s driver’s license for a period of one year for having an unlawful breath alcohol level under Florida Statutes section 322.2615.

            Upon Petitioner’s request, the Bureau of Driver Improvement conducted a formal review hearing on April 17, 2009.  Petitioner, represented by counsel, moved to invalidate his license suspension based on the lack of competent substantial evidence that Petitioner had an unlawful breath alcohol level above a .08.  The Hearing Officer entered her Findings of Fact, Conclusions of Law and Decision (“Final Order”) to affirm the administrative order and sustain the license suspension based on her conclusions that Petitioner was driving or in actual physical control of a motor vehicle in this state while under the influence of alcohol and that Petitioner had a breath-alcohol level of .08 or higher.  See § 322.2615, Fla. Stat.  Petitioner now seeks review of that Final Order based on the unreliability of the breath samples. 

            In reviewing the DHSMV’s Order, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential elements of law have been observed, and (3) whether the administrative findings are supported by competent, substantial evidence.  Vichich v. Dep’t of Highway Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001).  It is not the job or function of the circuit court to reweigh evidence and make findings when it undertakes a review of an administrative decision.  Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).  The hearing officer assigned to hear the case by the DHSMV is “the trier of fact and in the best position to evaluate the evidence.”  Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995).

            Petitioner argues that his breath test results are unreliable because the control tests registered a .003.  Citing to Department of Highway Safety & Motor Vehicles v. Johnson, 686 So. 2d 672 (Fla. 5th DCA 1996), and State of Florida v. Freidrich, 681 So. 2d 1157 (5th DCA 1996), Petitioner argues that this apparent .003 variation in the stock solution may theoretically raise breath test results of .082 or less to the statutory level of presumed intoxication.  Because one of the test results indicated a breath alcohol level of only .081, Petitioner contends that there is insufficient evidence of two breath tests above .08 to uphold the license suspension. 

            In a previous case, this Court considered similar arguments in Pagano v. State of Florida Department of Highway Safety and Motor Vehicles, 2 Fla. L. Weekly Supp. 353a (Fla. 6th Cir. App. Ct. June 29, 1994), where the petitioner’s breath results were .081 and .072.  In Pagano, this Court held:  “[W]here the breath tests results show a ‘tie,’ the hearing officer is allowed to consider the totality of the evidence to determine if the driver was or was not driving with an unlawful blood alcohol level.”  Id.

            As in Pagano, the hearing officer heard evidence that the arresting officer detected the odor of an alcoholic beverage on Petitioner’s breath; Petitioner’s eyes were bloodshot and glassy; he admitted to drinking; and he performed poorly on the field sobriety tests.  These physical manifestations of impairment, coupled with the .083 breath test, support the hearing officer’s finding that a preponderance of the evidence demonstrated that Petitioner was driving with an unlawful blood alcohol level in Florida Statutes sections 316.193 and 322.2615.

            Though not critical to this decision, the Court notes that the Petitioner misinterprets the significance of the apparent .003 deviation in the reading obtained for the nominal .08 sample.  Such a variation in the sample solution used for testing is within the acceptable range under Florida Department of Law Enforcement rules.  See Fla. Admin. Code R. 11D-8.002 - 11D-8.006.  Thus, rather than reflecting a .003 error on the part of the equipment, the two readings of .083 describe the actual test sample used.  The two identical readings for the same sample reinforces confidence in the accuracy of the equipment, including its accuracy in reading both samples of Petitioner’s breath. 

            Accordingly, it is

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

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ________ day of August 2010.



Original order entered on August 3, 2010 by Circuit Judges Jack Day, Peter Ramsberger, and Pamela A.M. Campbell.



Copies furnished to:


Darren Finebloom, Esquire

Finebloom & Haenel, P.A.

200 N. Washington Blvd.

Sarasota, FL 34236

Attorney for Petitioner


Heather Rose Cramer, Esquire

Assistant General Counsel

DHSMV - Legal Office

P.O. Box 540609

Lake Worth, FL 33454-0609

Attorney for Respondent