Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES Suspension blood alcohol test Decision to sustain Petitioner’s license suspension was not based on substantial competent evidence and departed from the essential requirements of law where hearing officer made no findings regarding the impracticality or impossibility of breath or urine testing, particularly in light of factual inconsistencies within the documentary evidence.  Petition granted.  Dente v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 10-000008AP-88B (Fla. 6th Cir. App. Ct. July 22, 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

 

 

CYNTHIA HOYT DENTE,

                        Petitioner,                                                      Ref. No.:  10-0008AP-88B

v.                                                                                             UCN:  522010AP000008XXXXCV

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND                                          

MOTOR VEHICLES,

                        Respondent.

__________________________________/

 

Order granting petition for writ of certiorari

            THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner Cynthia Hoyt Dente on February 24, 2010.  The Department of Highway Safety and Motor Vehicles (“DHSMV”) filed a response, to which Petitioner filed a reply.  Upon consideration, this Court finds that the Petition for Writ of Certiorari is hereby granted.

            On December 19, 2009, at approximately 3:15 a.m., Trooper Robert S. Ray arrived at an automobile collision scene and made contact with Petitioner, who was in the back of an ambulance.  Trooper Ray observed that Petitioner had bloodshot eyes and smelled of an alcoholic beverage.  While the trooper conducted his investigation, Petitioner was transported to Countryside Mease Hospital.  At approximately 4:43 a.m., Trooper Ray met Petitioner at the hospital and asked Petitioner to submit to a blood test to determine her blood alcohol level.  According to Petitioner, she was awaiting legal advice from a friend, while Trooper Ray repeated his requests for Petitioner to submit to a blood alcohol test.  Trooper Ray’s Affidavit of Refusal indicates that Petitioner was arrested on December 19, 2009, at 4:47 p.m. and she refused to submit to a breath, urine, or blood test at 4:49 p.m. 

Petitioner requested administrative review of her license suspension.  A hearing officer conducted an administrative hearing on January 26, 2010, and determined by a preponderance of the evidence supported findings that (1) Trooper Ray had probable cause “to believe that Petitioner was driving or in actual physical control of a motor vehicle . . . while under the influence of alcoholic beverages”; (2) Petitioner refused to submit to a test of her blood alcohol level after being requested to do so; and (3) Petitioner was told that her refusal to submit to a blood test would result in a suspension for a period of one year or, in the case of a second refusal, for a period of eighteen months. 

In reviewing the hearing officer’s Findings of Fact, Conclusions of Law and Decision, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been met and (3) whether the administrative hearing officer’s findings are supported by competent, substantial evidence.  Vivich v. DHSMV, 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).

A request for a blood alcohol test is lawful only where the accused has appeared for treatment at a medical facility and breath or urine tests are impractical or impossible. § 316.1932(1)(c), Fla. Stat.  Breath or urine tests may be impossible or impractical if accused has been injured, taken to a hospital, and the arresting officer believes the accused will be admitted for treatment, which would prevent her transportation to a testing facility within a reasonable time.  State v. Nosal, No. CRC 07-41 APANO (Fla. 6th Cir. App. Ct. April 24, 2008); State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995).  In this instance, Petitioner had already been transported to a hospital, treated, and apparently released by the time Trooper Ray asked Petitioner to submit to a blood test.  Moreover, upon Petitioner’s discharge from the hospital, Trooper Ray arrested and transported her to the Pinellas County Jail, again without requesting Petitioner to provide a breath or urine sample.

In his order, the hearing officer denied a motion to invalidate the suspension because a breath test was not impossible or impracticable but made no findings regarding the impracticality or impossibility of breath or urine testing.  Particularly in light of the inconsistencies in the times indicated on the documentary evidence, the hearing officer’s decision to sustain Petitioner’s license suspension was not based on substantial competent evidence and the hearing officer departed from the essential requirements of law by not applying Fla. Stat. § 316.1932(1)(c) and relevant case law.  Accordingly, it is

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

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

 

Original order entered on July 22, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

 

 

 

 

Copies furnished to:

 

Robert O. Bauer, Jr., Esquire

Jordan Hills Professional Center

1550 South Highland Avenue – Suite C

Clearwater, FL 33756

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