Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent – breath test – implied consent law must be given before driver is requested to submit to breath test – documentary evidence submitted to hearing officer was inconsistent about when or if implied consent warning was given – Department failed to meet its burden to resolve discrepancies - Petition granted.  Steller v. Department of Highway Safety & Motor Vehicles, Appeal No. 09-0039AP-88A (Fla. 6th Cir. App. Div. December 21, 2009).











                        Petitioner,                                           Appeal No. 09-000039AP-88A

                                                                                    UCN 522009AP000039XXXXCV

vs.                                                                                DMV Case No. S326-790-64-181-0












            THIS MATTER is before the Court on the Petition for Writ of Certiorari of Steven Steller, who seeks review of the Findings of Fact, Conclusions of Law and Decision entered by the Department of Highway Safety and Motor Vehicles (Department) on June 30, 2009.  This Decision affirmed the suspension of Petitioner’s driving license for refusal to submit to a breath test pursuant to section 322.2615, Florida Statutes.  Having reviewed the Petition, Response, and Reply; the Record; and being otherwise fully advised, the Court finds that the Petition must be GRANTED because there is not substantial competent evidence to conclude that Petitioner was given the implied consent warning prior to being asked to submit to a breath test.

In reviewing the Department’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 and judgment are supported by competent, substantial evidence.  Vichich v Department of Highway Safety and Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001). 

At the Department’s formal review hearing, the Hearing Officer admitted the following documents into evidence:  Notice of Suspension; Law Enforcement Oath Form; Probable Cause Affidavit (PC Affidavit); DUI Report; and Refusal Affidavit.  No live testimony was taken.  The evidentiary documents reveal the following facts: 

Clearwater police observed Petitioner driving 82 m.p.h. in a 40 m.p.h. zone and failing to maintain his lane position.  When Officer Marshall pulled Petitioner over, he smelled the odor of alcohol; observed bloodshot, glassy eyes; and found Petitioner’s speech “mumbled and incoherent.”

            The officer then administered field sobriety tests.  On the DUI Report, he noted that Petitioner did not keep his eyes closed and missed the tip of his nose on his Finger to Nose test.  He also marked that Petitioner swayed more than two inches during the Rhomberg Alphabet Test, but not that he recited the alphabet incorrectly.  The DUI Report also indicated that Petitioner could not perform either the Walk and Turn or One Leg Test; however, in the PC Affidavit, the officer recited that Petitioner had “completed” these tests.

            The PC Affidavit also states that prior to speaking with Steller as part of his investigation, Officer Marshall read Steller his Miranda rights[1] and Steller then declined to speak with him.  Officer Marshall also stated in the PC Affidavit that he informed Steller of implied consent and Steller acknowledged his understanding of the same, but he still refused two subsequent requests to provide a breath sample. 

However, the DUI Report is marked “no” under Implied Consent, with no further explanation listed.  Also, in the Refusal Affidavit, the section where the officer is supposed to put the time he or she gave the implied consent advisement is blank.

            Counsel for Petitioner submitted three written motions to invalidate the suspension, arguing a lack of competent substantial evidence to support the findings that (1) Officer Marshall had probable cause to believe that Petitioner was under the influence; or (2) Officer Marshall timely informed Petitioner of implied consent.  Petitioner also contended that the confusion doctrine should bar the suspension because Petitioner’s refusal to submit to a breath test resulted from his reasonable belief that his Miranda rights extended to implied consent.

            However, the Hearing Officer denied all three motions and made the following Findings of Fact:

On March 20, 2009 the petitioner was driving or in actual physical control of a motor vehicle.  Officer Marshall with the Clearwater Police Department made contact with the petitioner.  Upon contact with the petitioner the officer noticed an odor of an alcoholic beverage and bloodshot, watery, glassy eyes.  The petitioner was asked to perform field sobriety tests to which he complied.  The results of the tests revealed further impairment and the petitioner was arrested for DUI.  The petitioner was transported to jail and asked to submit to a lawful breath test to which he refused.  The petitioner was read implied consent and still refused.


            In his Petition, Steller raises the same three arguments that he presented in motions to the Hearing Officer.   Initially, this Court notes that a hearing officer is charged with determining the following by only a preponderance of the evidence: (1) that the driver was in actual physical control of a motor vehicle while under the influence; (2) that the driver refused to submit to a breath, blood or urine test after being requested to do so by an officer; and (3) that the driver was informed of implied consent.  § 322.2615(7)(b)1-3, Fla. Stat.

Petitioner first contends that the Record lacks substantial competent evidence to support probable cause because he passed the alphabet test and scored minimal clues on the Finger to Nose test, and Officer Marshall failed to indicate how he performed on the Walk and Turn and One Leg tests.  In support of his contention, he cites State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000), where the court determined that the mere odor of alcohol was insufficient to support probable cause that a driver was under the influence.

Here, however, the Hearing Officer was presented with far more evidence of impairment than the mere odor of alcohol.  Specifically, the Hearing Officer also noted glassy, bloodshot, eyes and poor performance on sobriety tests.  As noted in Kliphouse, the “components central to developing probable cause may include the defendant's reckless or dangerous operation of a vehicle, slurred speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, and poor performance on field sobriety exercises.”  Id. at 23.  Therefore, under a preponderance of the evidence standard, the Hearing Officer had competent, substantial evidence to support a finding of probable cause.

Likewise, this Court finds no merit in petitioner’s third argument.  Recently, this circuit determined that even if a driver is legitimately confused about the interplay of the Miranda warning and implied consent, the confusion doctrine will not apply unless the driver communicates his or her confusion to an officer.  Lavin v. Department of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly 605a (Fla. 6th Cir. Ct. App. Div. May 15, 2009).   Nowhere does the Record indicate that Steller communicated any confusion to the officers about whether his Miranda rights applied to his refusal to take a breath test.

However, this Court agrees with Petitioner’s second argument that the Hearing Officer lacked substantial competent evidence to conclude that Steller was properly given the implied consent warning.  In order for an implied consent warning to be valid, it must have been given prior to the request to take a breath test.  See  §§ 332.2615(2),(7)(b)2, Fla. Stat.; see also Department of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (Fla. 1st DCA 2002).  Otherwise, the driver is not knowingly refusing to submit to such a test, and his refusal is invalid.  Id.

The Hearing Officer concluded that Steller refused to submit to a breath test, was read implied consent, and still refused.  This is indicated by the PC Affidavit.  However, two other documents the Hearing Officer admitted into evidence contradict the PC Affidavit.  The DUI Form is marked “no” next to Informed Consent, and the Refusal Affidavit is blank where the officer is to record the time he or she gave the implied consent warning.

Under similar circumstances, this circuit has held that inconsistencies as to when the implied consent warning was given require the Department to provide live sworn testimony to resolve discrepancies.  In Cellamare v. Department of Highway Safety and Motor Vehicles, 14 Fla. L. Weekly Supp. 908a (Fla. 6th Cir. Ct. App. Div. Apr. 13, 2007), the refusal affidavit stated that Cellamare was given the implied consent warning and then refused to take a breath test.  However, the arrest narrative was silent on whether Cellamare was given another opportunity to take a breath test after he was advised of implied consent.

            The court noted that while one could infer that the officer again asked Cellamare to take a breath test after he was informed of implied consent, “one can just as easily conclude, as the arrest narrative seems to imply, that Cellamare was asked to take the breath test just once, after which he was then informed of the implied consent warning.”  Id.  Analogizing to Trimble,[2] the court held that where such inconsistency exists, “the burden [is] on the Department to provide live sworn testimony to resolve the discrepancies.” Id. 

            Here, the record is at least as inconsistent as that presented in Cellamare.  While Officer Marshall’s PC Affidavit states that the implied consent warning preceded at least one breath test request, the Refusal Affidavit is silent as to when any warning was given.  Also, the DUI Form actually indicates that no warning was given.  Under such circumstances, the Department was required to put on live sworn testimony to resolve these discrepancies.

            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 in Clearwater, Pinellas County, Florida, this ____ day of December, 2009.

Original order entered on December 10, 2009 by Circuit Judges Pamela A.M. Campbell, George W. Greer, and John A. Schaefer.



[1] Miranda v. Arizona, 384 U.S. 436, 467-69 (1966).

[2] In Trimble, various documents indicated that Trimble was arrested at 11:40 p.m. on September 27; refused a breath test at 12:47 a.m. on September 27; and was given the implied consent warning at 12:50 a.m. on September 27.  821 So. 2d at 1086.