Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:
DRIVER’S LICENSES – Suspension – Documentary evidence constituted
competent, substantial evidence to sustain suspension of license based on Petitioner’s
refusal to submit to an alcohol breath test, despite inconsistency about the
time and date of the arrest, there is
no real discrepancy about the order
of events. Petition denied.
Collins v. Department of
Highway Safety and Motor Vehicles, No. 10-000026AP-88B (Fla. 6th
Cir. App. October 29, 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
EUGENE COLLINS,
Petitioner,
Ref.
No.: 10-000026AP-88B
v.
UCN: 5220010AP000026XXXXCV
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND 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 Eugene
Collins on June 28, 2010. Upon consideration, the petition is hereby denied.
Petitioner
was arrested and charged with possession of marijuana and driving under the
influence of drugs and alcohol. The
documentary evidence contains slight discrepancies as to the dates and times of
the offense. The DUI citation and
speeding citation each indicate that Petitioner was arrested on March 11, 2010,
at 11:44 p.m. The Complaint/Arrest
Affidavit contains an anomalous statement that the incident took place at11:44
p.m. on March 12, 2010, but this is an apparent scrivener’s error; the
same affidavit indicates an arrest time of 12:54 a.m. on March 12, 2010. The DUI Observation Report likewise states
that Petitioner was stopped at 2344 (11:44 p.m.) on March 11, 2010, but not
arrested until 0054 (12:54 a.m.), with no separate date indicated for the
arrest. The Affidavit of Refusal to
Submit to Breath, Urine, or Blood Tests states that the Petitioner was arrested
on March 12, 2010, at “1254” a.m. and that Petitioner refused to submit to a
breath test on March 12, 2010 at 1:05 a.m. Finally, the Alcohol Influence Report Form
indicates that implied consent warnings were read to the Petitioner at a time
of 0057 (12:57 a.m.), without the date indicated.
The Department of Highway Safety and Motor Vehicles
(“DHSMV”) suspended the Petitioner’s driving privilege based on his refusal to
submit to an alcohol breath test.
Petitioner challenged the suspension, and an administrative hearing was
conducted on May 21, 2010. At the
hearing, the DHSMV presented documentary evidence but called no witnesses,
although the arresting officer was present.
On May 28, 2010, the Hearing Officer entered a Final Order
making findings of fact:
On March 11,
2010[,] the Petitioner was stopped for speeding. He exhibited obvious signs of impairment and
performed poorly on field sobriety evaluations. The Petitioner was read and
explained Implied Consent Warnings and was requested to submit to a lawful
breath test; he refused.
The same order
sustained the suspension of Petitioner’s driver’s license. The Petitioner filed the instant Petition for
Writ of Certiorari challenging the Order.
In
reviewing the DHSMV’s order, this Court is limited to determining whether procedural
due process has been accorded, whether the essential requirements of law have
been observed, and whether the decision is 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 driver’s license suspension must be invalidated because the
documentary evidence was in conflict as to whether Petitioner’s refusal was
incident to lawful arrest, as required by section 316.1932, Florida Statutes. Petitioner also argues that the DHSMV failed
to meet its burden to resolve the alleged conflict via live sworn testimony. In support of these arguments, Petitioner
relies heavily on Department of Highway
Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084 (Fla. 1st DCA 2002). In Trimble,
the First District found that the documentary evidence presented by the DHSMV was
“hopelessly in conflict and the discrepancies on the critical facts went unexplained.” Id.
at 1086. The court found the documentary
evidence insufficiently reliable to constitute competent evidence to support
the suspension. Id.
The documentary evidence in this instance contains an
inconsistency about the time and date of the arrest, specifically, whether it
occurred at 11:44 p.m. on March 11, 2010, or 12:54 a.m. on March 12, 2010. However, unlike the conflict in Trimble, this inconsistency is
immaterial, as there is
no real discrepancy about the order
of events.[1] The order of events was proper, regardless of
whether the arrest occurred at 11:44 p.m. or 70 minutes later, because the
implied consent warning is documented at12:57 a.m., and the refusal at 1:05 a.m.
In other words, the arrest, implied
consent warning, and refusal occurred in precisely that order, as reflected by
the documents entered into evidence. No
live testimony was required to clear up the discrepancy regarding the time and
date of arrest. Under these
circumstances, the documentary evidence alone constituted competent,
substantial evidence upon which the Hearing Officer properly based his decision.
Accordingly, it is
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers, at St. Petersburg,
Pinellas County, Florida, this ________ day of October 2010.
Original
order entered on October 29, 2010 by Circuit Judges Jack Day, Peter Ramsberger,
and Pamela A.M. Campbell.
Copies furnished to:
Ricardo Rivera, Esq.
The Law Offices of Carlson & Meissner
250 N. Belcher Rd., Ste. 102
Clearwater, FL 33765
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