Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Probable cause – Offense Report, including witness statements identifying Petitioner as driver of vehicle, constituted competent, substantial evidence that the arresting officer had probable cause to believe that Petitioner was in actual physical control of the vehicle.  Fla. Stat. § 322.2615(2) does not govern decision where accident report was not admitted into evidence at the review hearing. Petition denied.  Miles v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 11-000003AP-88B (Fla. 6th Cir. App. Ct. May 20, 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

 

 

KIMBERLY K. MILES,

                        Petitioner,                                                       Ref. No.:  11-000003AP-88B

v.                                                                                             UCN:  522011AP000003XXXXCV

 

STATE OF 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 Kimberly K. Miles on January 12, 2011.  The Department of Highway Safety and Motor Vehicles (“DHSMV”) filed a Response, to which Petitioner filed a Reply.  Upon consideration, this Court denies the Petition for Writ of Certiorari.

            On October 27, 2010, at approximately 9:10 p.m., the Petitioner was involved in a motor vehicle collision with a bicyclist.  Deputy Michael J. Darrow of the Pinellas County Sheriff’s Office responded to the scene, conducted the accident investigation, and completed an accident report.[1]  Subsequently, Deputy Dean LaChance arrived at the scene, advised Petitioner that the crash investigation was complete and that he would “be evaluating her for possible impairment.”  Petitioner advised Deputy LaChance that she was the sole occupant inside her truck and was driving northbound on Broadway when she struck the bicycle.  After making statements about the quantity of alcohol she had consumed, Petitioner submitted to field sobriety tests.  Deputy LaChance read Petitioner her Miranda rights at approximately 10:03 p.m. and then placed her under arrest for DUI.  At approximately 10:52 p.m., Deputy LaChance read Petitioner the Implied Consent Warnings. Petitioner refused to provide a breath sample, and the DHSMV suspended her driver’s license.

Petitioner requested administrative review of her license suspension.  A hearing officer conducted an administrative hearing on December 10, 2010.  Deputy LaChance did not appear for the hearing because he was on vacation.  Despite being subpoenaed, Deputy Darrow failed to appear for the hearing without explanation.  Rather than move for a continuance to seek enforcement of the subpoenas under Florida Statutes § 322.2615(6)(c), Petitioner elected to file the original subpoenas as proof of service and to proceed with the hearing without witnesses. 

At the administrative hearing, Petitioner objected to entry of the Complaint/Arrest Affidavit into evidence.  Specifically, Petitioner argued that the document reflects that there was no probable cause that she was driving or in actual physical control of her vehicle.  First, Petitioner noted that Officer Darrow did not see Petitioner driving the vehicle, and she provided all information required by § 316.066(1).  According to the Petitioner, Deputy LaChance’s advice that “I’m now -- I’m now -- this crash investigation is over and I will now be evaluating you for possible impairment” was insufficient to advise her that she was being investigated for criminal activity and that she had a right to remain silent under Miranda.  Petitioner argued that, with her pre-Miranda statement excluded, there was no evidence before the Hearing Officer that Petitioner was driving or in actual physical control of her vehicle. 

By her Order of December 13, 2010, the Hearing Officer overruled Petitioner’s objections that the Complaint/Arrest Affidavit was insufficient proof of actual physical control and overruled Petitioner’s objections to the entry of various exhibits, including the Complaint/Arrest Affidavit.  The Hearing Officer held that a preponderance of the evidence supported findings that (1) Deputy LaChance 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 subsequent to a lawful arrest; 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.  Vichich v. DHSMV, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001).  It is not the 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 the DHSMV decision is not supported by competent, substantial evidence and that the Hearing Officer departed from the essential requirements of law by permitting Petitioner’s pre-Miranda admission that she was the sole occupant of the vehicle to be used against Petitioner, where Deputy LaChance failed to expressly inform Petitioner that a criminal investigation had begun or to give her timely Miranda warnings.  According to Petitioner, absent this pre-Miranda statement, the Hearing Officer had no evidence to conclude that there was probable cause to believe that Petitioner was in actual physical control of the vehicle.

Contrary to Petitioner’s assertions, Deputy LaChance reported in the Offense Report as follows:  “Upon arrival, I met with Dunedin Fire Department and they pointed to a bicycle and blue Chevy truck and indentified Kimberly Miles as the driver of the truck.”  Pinellas County Sheriff’s Office ACISS Offense Report SO10-308703 (Ex. 1 of Pet. For Writ of Cert. at 7).  This report was entered into evidence as DDL 9 at the administrative hearing without objection and considered by the Hearing Officer in making her decision.  Although neither party references this statement, the Court finds that competent, substantial evidence supports the Hearing Officer’s decision to uphold Petitioner’s license suspension.  Petitioner has failed to demonstrate that the Hearing Officer departed from the essential standards of law in determining that the arresting officer had probable cause to believe the Petitioner was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages. It is

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.  Petitioner’s request for oral argument is DENIED as moot.

            DONE AND ORDERED in Chambers, in St. Petersburg, Pinellas County, Florida, on May _____, 2011.

 

Original order entered on May 20, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Jack Day.

 

Copies furnished to:

 

David J. Kurland, Esquire

Law Office of David J. Kurland

850 Clearwater-Largo Road SW

Largo, FL 33700-4470

Attorney for Petitioner

 

DHSMV

Legal Dept. - Room A-432

2900 Apalachee Parkway

Tallahassee, FL 32399

Kimberly A. Gibbs

Assistant General Counsel

DHSMV - Legal Office

P.O. Box 570066

Orlando, FL 32857

Attorney for Respondent

 

BUREAU OF ADMINISTRATIVE REVIEW

4584 140th Avenue, North, #1002

Clearwater, FL 33762

 



                [1] Deputy Darrow’s accident report was not entered into evidence at the administrative hearing, and it does not appear in this record on review.  Therefore, the DHSMV’s argument that this case is controlled on by the current version of § 322.2615(2) is unavailing.