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
Ref. No.: 10-000026AP-88B
v. UCN: 5220010AP000026XXXXCV
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
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. 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