Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Reliable, competent, substantial evidence supported Hearing Officer's finding that Petitioner was under arrest at the time the request to submit to breath-alcohol test was made and that Petitioner was informed of the consequences of the refusal to submit to breath test.  Petition denied.  Szurant v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000006AP-88A (Fla. 6th Cir. App. Ct. August 31, 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

 

 

JOLANTA SZURANT,

          Petitioner,                                             Case No. 11-000006AP-88A

                                                                        UCN522011AP000006XXXXCV

 

 

v.

 

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES, DIVISION OF DRIVER

LICENSES,

      Respondent.             

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

Ricardo Rivera, Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Heather Rose Cramer, Asst. Gen. Counsel

Attorneys for Respondent

 

PER CURIAM.

          Jolanta Szurant seeks certiorari review of the "Findings of Fact, Conclusions of Law and Decision" of the Hearing Officer of the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles, entered on January 3, 2011.  The Decision affirmed the administrative suspension of Ms. Szurant's driving privileges.  The petition for writ of certiorari is denied.

Statement of Case

          On November 1, 2011, Ms. Szurant was driving on a public road in Pinellas County when an officer of the Clearwater Police Department stopped her vehicle for suspected driving under the influence (DUI).  Ms. Szurant was transported to the Clearwater Police Department where she refused to submit to a breath test to determine the content of alcohol in her blood.  Due to her refusal, her driver's license was administratively suspended.

          On December 30, 2010, an administrative formal review hearing was conducted pursuant to section 322.2615, Florida Statutes (2010).  At the hearing, counsel for Ms. Szurant argued that the driver's license suspension should be invalidated because allegedly there is a "hopeless conflict" in the evidence relating to the timing of events surrounding Ms. Szurant's arrest and refusal to submit to the breath test.  No witnesses were presented by Ms. Szurant or by the Department of Highway Safety and Motor Vehicles (Department).  Only documentary evidence was submitted in support of the suspension of Ms. Szurant's driver's license.

          On January 3, 2011, the Hearing Officer entered the "Findings of Fact, Conclusions of Law and Decision."  Ms. Szurant's motion to invalidate the suspension was denied.  The Hearing Officer concluded that all elements necessary to sustain the suspension of Ms. Szurant's driving privileges were supported by a preponderance of the evidence and the order of suspension was affirmed.  This petition followed.

          Standard of Review

          Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent, substantial evidence.  See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).  This Court is not to reweigh the evidence or substitute its judgment for that of the Hearing Officer.  Id.

Evidence Submitted at Hearing

          The following evidence was submitted to the Hearing Officer at the formal review hearing and has been supplied to this Court in support of Ms. Szurant's Petition:

 

1.  The "Florida DUI Uniform Traffic Citation" (DDL 1) signed by Clearwater Police Sergeant Kinchen states:

          IN THE COURT DESIGNATED BELOW THE UNDERSIGNED CERTIFIES THAT HE/SHE HAS JUST AND REASONABLE GROUNDS TO BELIEVE AND DOES BELIEVE THAT ON

 

          MON                       11       1        2010                                  1:38 A.M.

 

          JOLANTA SZURANT . . . .DID UNLAWFULLY COMMIT THE OFFENSE OF DRIVING UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES, CHEMICAL OR CONTROLLED SUBSTANCES; DID DRIVE, OR WAS IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE/CHEMICAL SUBSTANCE/CONTROLLED SUBSTANCE TO THE EXTENT NORMAL FACULTIES WERE IMPAIRED, OR WITH A BLOOD OR BREATH ALCOHOL LEVEL OF .08 OR ABOVE OF _____________.

 

(Emphasis added).  The signature line on the Citation merely has the notation PCJ [Pinellas County Jail].  The citation continues, "EFFECTIVE IMMEDIATELY, YOUR DRIVING PRIVILEGE IS SUSPENDED/DISQUALIFIED FOR:

           X       REFUSAL TO SUBMIT TO LAWFUL BREATH, BLOOD OR URINE TEST F.S. 322.2615.  THIS SUSPENSION IS FOR A PERIOD OF ONE YEAR IF THIS IS A FIRST REFUSAL OR 18 MONTHS IF PREVIOUSLY SUSPENDED FOR THIS OFFENSE. . . .

 

2.  The "Complaint/Arrest Affidavit" (DDL 3) signed by Sgt. Kinchen states:

 

          The undersigned swears that he has reasonable grounds to believe that [Ms. Szurant] on the 1 day of NOVEMBER, 2010, at approximately 1:12 AM at 300 BLOCK OF S. GULFVIEW BLVD, in Pinellas County did:

 

          Reason for stop:  Szurant was paced at 45 mph in a 25 mph zone and failed to maintain a single lane

 

          Then and there unlawfully drive and/or be in actual physical control of a motor vehicle within pinellas county, florida while under the influence of alcoholic beverage, a controlled substance and/or any chemical substance to the extent that her normal faculties were impaired.

 

          BRAC:  refused       Breath: strong odor

          Balance: poor          Eyes: blood shot, watery

          Prior Convictions: 04/21/07

 

          Defendant failed field sobriety tests.

          . . . .

 

          SZURANT WAS OPERATING A 2004 NISSAN SPORT UTILITY VEHICLE . . . NORTH BOUND ON MANDALAY AVE AT 45 MPH IN A 25 MPH ZONE.  SHE FAILED TO MAINTAIN A SINGLE LANE AND DROVE NORTH BOUND IN THE SOUTH BOUND LANES.

          . . . .

 

          ARREST DATE 11/1/2010           Time 1:26 AM

 

(Emphasis added).

 

3.  The "Affidavit of Refusal to Submit to Breath, Urine, or Blood Test" (DDL 4) signed by Sgt. Kinchen states that on November 1, 2010 at 1:28 a.m., Ms. Szurant was placed under arrest for DUI.  "That on or about the 1 day of November, 2010, at 0130 A.M." Sgt. Kinchen requested that Ms. Szurant submit to a breath test to determine the content of alcohol in her blood and she was informed that any refusal to submit to testing would result in her license being suspended.  Ms. Szurant refused to submit to the breath test. (Emphasis added).

 

4.  The "Clearwater Police Department ACISS CW—Offense Report" (DDL 6) prepared by Clearwater Police Officer Williams states:

          Occurrence from:    11/01/2010  01:00

          Occurrence to:        11/01/2010  01:12

          Source of Call:         ON VIEW     

The report by Off. Williams indicates that the backup officer, Sgt. Kinchen arrived at the scene at 01:12 a.m.  The report details the stop of the vehicle and that Sgt. Kinchen was in charge of the DUI investigation.  Ms. Szurant was unable to complete the field sobriety tests.  The report continues:

          I took her into custody for further investigation on the charge of DUI. . . .  I then transported Szurant to CPD main [Clearwater Police Headquarters] to meet with Ofc Faulk for a Breath Test.

         

          While en route to CPD Main, Szurant vomited in my vehicle.  Once at CPD Main I had Szurant step out of my vehicle and placed her in a holding cell.  I then began the 20 min observation period.

 

          Ofc Faulk arrived and I explained to him what I had so far, ref his supplement.  At 0154 hours Szurant refused to submit to a breath test. . . .

 

Decision by Hearing Officer

          The "Findings of Fact, Conclusions of Law and Decision" of the Hearing Officer

states:

                     I find that the following facts are supported by a preponderance of the evidence:

                     On November 1, 2010 [Ms. Szurant] was stopped for crossing over the double yellow lines several times.  [Ms. Szurant] exhibited obvious signs of impairment and performed poorly on field sobriety evaluations.  She also admitted to having consumed one merlot.  She was placed under lawful arrest for DUI at 1:28 a.m. November 1, 2010 and was transported to the Clearwater Police Department for further testing.  At 1:30 a.m. November 1, 2010 she was read and explained Implied Consent Warnings.  At 1:54 a.m. November 1, 2010 [Ms. Szurant] refused to submit to a lawful breath test.

 

The Hearing Officer denied the motion to invalidate the suspension and concluded as a matter of law that the officer had probable cause to believe Ms. Szurant was driving under the influence; that subsequent to a lawful arrest Ms. Szurant refused to submit to a breath test after being requested to do so by a law enforcement officer; and Ms. Szurant was informed that if she refused to submit to a breath test her driving privileges would be suspended.  The Hearing Officer found that all elements necessary to sustain the driver's license suspension were supported by a preponderance of the evidence and the suspension was affirmed.

Analysis

          The evidence in the record demonstrates the following timeline.  All events were alleged to have occurred in the early morning hours of November 1, 2010:

01:00 a.m.    Ms. Szurant observed driving erratically by Off. Williams.  (DDL 6).

 

01:12 a.m.    Ms. Szurant stopped by Off. Williams and backup officer Sgt. Kinchen. (DDL 3, 6).

 

01:26 a.m.    Ms. Szurant arrested. (DDL 3).

 

01:28 a.m.    Ms. Szurant arrested. (DDL 4).

 

01:30 a.m.    Ms. Szurant was given Implied Consent Warning by Sgt. Kinchen and she was asked to submit to a breath test.  Ms. Szurant refused to take the breath test. (DDL 4).

 

01:38 a.m.    Citation issued that states Ms. Szurant committed DUI and her license was suspended for refusal to submit to a breath test. (DDL 1)

 

01:54 a.m.    Ms. Szurant refused to take breath test. (DDL 6).

 

          In order for the suspension of a driver's license to be valid under the statute at issue, the law requires that a defendant must have been under arrest at the time the request to submit to the breath test was made and that the defendant be informed of the consequences of the refusal to submit to the test.  See §§ 316.1932(1)(a); 322.2615, Fla. Stat. (2010); Fla. Dep't of Highway Safety & Motor Vehicles v. Hernandez, 36 Fla. L. Weekly S243 (Fla. June 9, 2011)(not yet final, motion for rehearing/clarification pending)(approving holding that driver's license "suspension can be predicated upon a refusal to take a breath test, but only if the refusal is incident to a lawful arrest")(quashing McLaughlin v. Dep't of Highway Safety & Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA 2008)).

          In the petition, Ms. Szurant argues that the documentary evidence at the administrative hearing was in conflict as to whether the refusal to submit to the breath test was made before or after her arrest.  It is asserted that without live-sworn testimony to resolve the conflict, there was a lack of competent, substantial evidence to sustain the suspension of her license.

          To support her argument, Ms. Szurant notes that all the documents in evidence do not indicate that Ms. Szurant was read the Implied Consent Warning.  She also directs the Court to the Citation (DDL 1) that states Ms. Szurant committed the DUI offense at 1:38 a.m.  The time listed in the Citation allegedly is inconsistent with the other reports in the record which indicate that Ms. Szurant was arrested at 1:26 a.m. (DDL 3) or 1:28 a.m. (DDL 4); that she was read the Implied Consent Warning and refused at 1:30 a.m. (DDL 4); and also that she refused to take the breath test at 1:54 a.m. (DDL 6).  Ms. Szurant cites to Department of Highway Safety and Motor Vehicles v. Trimble, 821 So. 2d 1084 (Fla. 1st DCA 2002), to support her argument that due to the inconsistencies in the evidence, the Hearing Officer's affirmance of the suspension of her driver's license should be quashed.  See also Ojiem v. Dep't of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 535a (Fla. 6th Cir. App. Ct. March 26, 2008); Cellamare v. Dep't of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 908a (Fla. 6th Cir. App. Ct. April 13, 2007).

          In Trimble, the circuit court acting in its appellate capacity found that competent, substantial evidence did not support the Hearing Officer's determination that inconsistencies between the timing of events in the various documents submitted by the Department were the result of "clerical errors."  In affirming the circuit appellate court, the First District Court of Appeal concluded that the circuit court had not impermissibly reweighed the evidence when it granted Trimble's petition for writ of certiorari. 

          The issue in Trimble was whether Trimble was given the Implied Consent Warning prior to her refusal to submit to the breath/blood/urine test.  In that case, clearly the evidence was in conflict.  The "Affidavit of Refusal to Submit to Breath, Urine or Blood Test" recited that Trimble was arrested on the evening of September 27, 2000, at 11:40 p.m.  The same document recounted that the warning, request to submit to the breath test, and refusal to submit were made on the early morning hours of September 27, 2000, at 12:45 a.m.  The printout from the Breathalyzer machine reflected that Trimble's refusal occurred on September 27, 2000, at 12:47 a.m.  But, contradicting the statements in both documents was the arresting officer's narrative report indicating that the Implied Consent Warning was given on September 27, 2000, at 12:50 a.m.  

          The First District Court of Appeal in Trimble quoted De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), when discussing the definition of competent, substantial evidence:

          Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.  We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.  In employing the adjective “competent” to modify the word “substantial,” we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed.  We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.  To this extent the “substantial” evidence should also be “competent.”

 

Trimble, 821 So. 2d at 1086-87.  The opinion notes that two years later the Florida Supreme Court further refined the definition when it stated, "Although the terms 'substantial evidence' or 'competent substantial evidence' have been variously defined, past judicial interpretation indicates that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient."  Id. at 1087 (quoting Fla. Rate Conference v. Fla. R.R. & Pub. Util. Comm'n, 108 So. 2d 601, 607 (Fla. 1959)).  The First District Court of Appeal concluded, "The hearing officer's finding that Trimble was given a consent warning before her refusal could have rested as much on a flip of a coin as on the documentary evidence submitted."  Id. at 1087.  The circuit appellate court's decision to set aside the suspension of Trimble's driver's license was affirmed by the First District Court of Appeal when it denied the second-tier certiorari petition.

Conclusion

          Ms. Szurant points out that the "Florida DUI Uniform Traffic Citation" (DDL 1) states that at 1:38 a.m. she committed the DUI offense; however, she does not comment on the fact that this same Citation also documents that her license immediately was suspended for refusal to submit to the breath test at that time.  The Citation documents that Ms. Szurant had committed the DUI and also that she had refused to submit to the breath test by 1:38 a.m.  This evidence does not contradict the statements in the "Complaint/Arrest Affidavit" and the "Affidavit of Refusal to Submit to Breath, Urine, or Blood Test" that Ms. Szurant was arrested at 1:26 a.m. or 1:28 a.m., (DDL 3, 4) and given the Implied Consent Warning at 1:30 a.m., before her refusal to take the breath test. (DDL 4). 

          In reviewing all the evidence of record as detailed above, this Court concludes that reliable, competent, substantial evidence supports the Hearing Officer's decision that all elements necessary to sustain the suspension of Ms. Szurant's driving privileges, including the requirement that Ms. Szurant be under arrest at the time she was given the Implied Consent Warnings and refused to submit to the test.  The evidence in the record is such that "a reasonable mind would accept [it] as adequate" to support the suspension of Ms. Szurant's driver's license.  See De Groot, 95 So. 2d at 916; see also Florida Rate Conference, 108 So. 2d at 607; Leverence v. Dep't of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 313a (Fla. 7th Cir. App. Ct. Nov. 3, 2009).  The petition is denied.

          Petition for Writ of Certiorari Denied.

 

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 31st day of August, 2011.

 

 

Original order entered on August 31, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

Copies furnished to:

 

Ricardo Rivera, Esq.

250 North Belcher Rd., Suite 102

Clearwater, FL 33765

 

Stephen D. Hurm, Gen. Counsel

Heather Rose Cramer, Asst. Gen. Counsel

Dep't of Hwy. Safety & Motor Vehicles

P.O. Box 540609

Lake Worth, FL 33454