Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – implied consent – breath test – Arresting deputy had probable cause to believe Petitioner was driving a motor vehicle while impaired based on deputies’ observations, including Petitioner’s poor performance on field sobriety tests – Hearing officer properly sustained license suspension based on Petitioner’s refusal to submit to a breath test. Petition denied. Stacknick v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 09-000054AP-88B (Fla. 6th Cir. App. Ct. August 5, 2010).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

WESLEY R. STACKNIK,

Petitioner,

v. Ref. No.: 09-000054AP-88B

UCN: 522009AP000054XXXXCV

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETYAND MOTOR

VEHICLES,

Respondent.

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner Wesley R. Stacknik on December 2, 2009. Respondent, Department of Highway Safety and Motor Vehicles (the “DHSMV”), filed a response, to which Petitioner filed a reply. Upon consideration, this Court finds that the Petition for Writ of Certiorari is hereby denied.

On September 26, 2009, Deputy Cristina Carosella responded to a parking lot crash at a Shell station. Deputy Carosella made contact with the owner of the vehicle that was hit by Petitioner. The owner of the damaged vehicle informed Deputy Carosella that it was not necessary to complete a crash report. The vehicle owner provided a description of the other driver and stated that the driver of the other vehicle may be impaired and was the only patron inside the gas station. Deputy Carosella made contact with the Petitioner, who stated, “It was just a little crash,” and the deputy noticed signs of impairment and mood change.

Deputy Kent Snavely arrived on scene and advised Petitioner that he was proceeding with a criminal investigation and read Petitioner his Miranda rights. Deputy Snavely detected the odor of an alcoholic beverage coming from Petitioner’s breath and facial area; noticed that Petitioner’s eyes were bloodshot, watery, and dilated; and observed Petitioner swaying while upright. Petitioner consented to field sobriety tests, and Deputy Snavely reported that the Petitioner performed poorly on the tests. Deputy Snavely then placed Petitioner under arrest for DUI and transported him to Central Breath Testing. Deputy Snavely asked Petitioner to submit to a breath test, and Petitioner refused. Deputy Snavely read implied consent warnings to Petitioner, and Petitioner again refused to do the breath test. Subsequently the DHSMV suspended Petitioner’s license pursuant to Florida Statutes section 322.2615.

Petitioner requested an administrative review of his license suspension. A hearing officer conducted an administrative hearing on November 4, 2009, and found by a preponderance of the evidence that (1) law enforcement had probable cause to believe that Petitioner was driving a motor vehicle while under the influence of alcoholic beverages; (2) Petitioner refused to submit to a breath test after being requested to do so; and (3) Petitioner was told that his refusal would result in a suspension of his driver’s license for a period of one year or, in the case of a second or subsequent refusal, for a period of eighteen months. Petitioner contends that the administrative hearing officer lacked competent substantial evidence for finding that law enforcement had probable cause to believe that Petitioner was driving under the influence of alcoholic beverages.

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 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 department 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 no competent substantial evidence in the record supports a finding that law enforcement had probable cause to believe he was driving a motor vehicle while he was under the influence of alcoholic beverages. More specifically, Petitioner argues that the hearing officer inappropriately considered Deputy Carosella’s accident report based on hearsay, made after Petitioner invoked his Miranda rights, and protected by the accident report privilege. Probable cause exists “where the facts and circumstances, as analyzed from the officer’s knowledge . . . and practical experience . . . are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.” Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So. 2d 551, 554 (Fla. 2d DCA 2002) (quoting Favino, 667 So. 2d at 308). However, the record includes evidence of Deputy Carosella’s observations made during her accident investigation, Deputy Snavely’s observations made during his DUI investigation, Petitioner’s post-Miranda statements, and Petitioner’s performance on the field sobriety tests. This substantial evidence supports the hearing officer’s finding of probable cause and decision to sustain the Petitioner’s license suspension.

Accordingly, it is

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

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

Original order entered on August 5, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

Copies furnished to: HEATHER ROSE CRAMER, ESQUIRE