Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Blood test – Administrative order suspending license was supported by competent substantial evidence that a blood or urine test was impossible or impractical where Petitioner advised that he needed no medical attention; he was unable to follow simple instructions by hospital staff; he had trouble standing and walking and was unsteady on his feet;  he was able to follow the officers’ commands; and he was transported to the police department only after he was medically released. Facts of case are distinguishable from Curry and Vaughn. Petition denied.  Stone v. Department of Highway Safety and Motor Vehicles, No. 10-000052AP-88B (Fla. 6th Cir. App. Ct. April 7, 2011).

 

 

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

 

 

SEAN STONE

                  Petitioner,

v.                                                                                             Ref. No.:  10-000052AP-88B

                                                                                                UCN:  522010AP000052XXXXCV

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

                  Respondent.

__________________________________/

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            THIS CAUSE is before the Court on the Petition for Writ of Certiorari filed by Petitioner Sean Stone on November 8, 2010.  The Department of Highway Safety and Motor Vehicles (“Department”) filed a response, to which Petitioner filed a reply.  Upon consideration, the Court finds that the Petition must be denied as set forth below.

On August 5, 2010, Petitioner was involved in a multi-vehicle traffic accident and was transported to Bayfront Hospital to receive medical treatment.  Upon arriving at the hospital to conduct a DUI investigation, Officer Scott Cameron observed Petitioner lying on a hospital bed in the hallway of the emergency room.  During their conversation, the officer observed a strong odor of alcoholic beverage on the Petitioner’s breath, bloodshot and glassy eyes with dilated pupils, an indifferent attitude, and a dazed expression.  Based on these observations and after reading Petitioner his Miranda rights, Officer Cameron requested the Petitioner to submit a blood test.  Petitioner refused.  Officer Cameron read Petitioner the implied consent warnings, and Petitioner still refused.

Officer Cameron discovered that Petitioner had two previous DUI convictions, on March 15, 1990, and November 12, 2003, and a prior conviction for refusing to submit on March 26, 2003.   Officer Cameron then placed Petitioner under arrest for DUI.  After Petitioner was medically cleared, Officer David Watson, the officer who conducted the civil traffic accident investigation, transported to the police station.   

A hearing officer conducted an administrative review hearing on October 5, 2010.  Petitioner filed a motion invalidate the license suspension based upon the failure of the documentary evidence to establish that a breath or urine test was impossible or impractical, especially where Petitioner was arrested and transported to the police department, where breath testing is conducted.   The hearing officer denied the motion and sustained Petitioner’s license suspension for refusal to submit a blood test.  On October 11, 2010, the hearing officer issued a final administrative order affirming the suspension of the Petitioner’s license for refusing to submit to a blood test.  Petitioner filed the instant Petition for Writ of Certiorari challenging the final administrative order as unsupported by competent substantial evidence that a blood or urine test was impossible or impractical.

            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).

            Florida Statutes § 316.1932(1)(c) (2010) authorizes an officer to request a blood test

for the purpose of determining the alcoholic content of the blood  . . . if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages . . .  and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.

 

Id.  Petitioner argues that the Department failed to show that a breath or urine test was impractical or impossible, given that Petitioner was uninjured and immediately transported to the police station, where breath tests are routinely given.  Petitioner relies on Curry v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 421b (Fla. 6th Cir. Ct. App. Nov. 22, 2004), and Vaughn v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 519b (Fla. 6th Cir. Ct. App. Mar. 20, 2006). 

            In Curry, the driver had refused all medical treatment, and the court rejected the Department’s “speculat[ion] that immediate transportation to a breath testing facility would have placed an undue burden on law enforcement, would have interfered with Curry’s possible treatment, and that a breath test was impractical since it would be ‘subject to dissipation over time.’”  Curry, 12 Fla. L. Weekly Supp. 421b.  The Department raises similar arguments in this case, but unlike the circumstances in Curry, the Petitioner here was sitting on a hospital bed and awaiting medical treatment.  Although the driver in Vaughn suffered injuries, the court noted that the driver had no problem communicating with the officer and did not need immediate emergency medical care, and the officer testified that it would have been practical to offer the driver a breath test upon arrest for DUI.  Vaughn, 13 Fla. L. Weekly Supp. 519b. 

            This case does not present such testimony by the arresting officer.  On the contrary, the record indicates that although the Petitioner advised that he needed no medical attention, he was unable to follow simple instructions by hospital staff; he had trouble standing and walking and was unsteady on his feet; and he was able to follow the officers’ commands.  More significantly, the record indicates he was transported to the police department only after he was medically released.  Under these circumstances, the final administrative order is supported by competent substantial evidence that a blood or urine test was impossible or impractical.

            Accordingly, it is hereby

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

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida, on April 7, 2011.

Original order entered on April 7, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

 

 

 

 

Copies furnished to:


RICARDO RIVERA, ESQUIRE

Carlson & Meissner                

250 North Belcher Road, Suite 102                

Clearwater, FL  34625

Attorney for Petitioner

 

BUREAU OF DRIVER IMPROVEMENT

2814 East Hillsborough Avenue

Tampa, FL  33610

HEATHER ROSE CRAMER, ESQUIRE

ASSISTANT GENERAL COUNSEL

DHSMV - Legal Office

P.O. Box 540609

Lake Worth, FL 33454-0609