Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Record contains competent substantial evidence supporting Hearing Officer’s findings that arresting officer had probable cause to believe Petitioner was driving under the influence of alcohol and  that arresting officer properly advised Petitioner of his Miranda rights.  Accident report privilege no longer applies to administrative license proceedings.  §§ 316.066(4), 322.2615, Fla. Stat. (2011).  Petition denied.  Belanger v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000044AP-88B (Fla. 6th Cir. App. Ct. January 6, 2012).

 

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

 

ANDREW BELANGER,

            Petitioner,

Ref. No.: 11-000044AP-88B

v.                                                                                             UCN: 5220011AP000044XXXXCV

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

            Respondent.

____________________________________/

 

ORDER DENYING PETITION FOR CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by the Petitioner, Andrew Belanger, on August 25, 2011. The Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, filed a response in opposition to the petition and a separate response to Petitioner’s request for fees and costs. For the reasons set forth below, the petition is hereby denied.

According to the documentary evidence, Petitioner was involved in a vehicle accident in St. Petersburg, Florida, on June 18, 2011. Officer Jeffrey K. Gosnell, a member of the DUI Enforcement Unit, was dispatched to assist Officer Innes with the crash investigation.  According to Officer Gosnell’s narrative, Officer Innes “suspected that the driver who caused the crash may be impaired. . . . Ofc. Innes said that the suspect had a strong smell of alcoholic beverage on his breath and slurred speech.” Officer Gosnell made contact with the Petitioner, made observations of impairment. 

Officer Gosnell further reported: “I advised Belanger of his Miranda Rights from my SAO issued card and further advised him that this was only for the purpose of questioning.  Belanger said that he understood his rights and would answer my questions. . . . .” Petitioner explained the circumstances of the accident and admitted to drinking three beers prior to the accident. Officer Cox videotaped Officer Gosnell administer Field Sobriety Tests to the Petitioner, who exhibited further signs of impairment. 

Officer Gosnell placed Petitioner under arrest for DUI and escorted him to the rear of Officer Cox’s patrol car.  There Petitioner refused to take a breathalyzer test. Officer Cox then read and explained the Implied Consent Form to Petitioner, who refused again to provide a breath sample.  Officer Gosnell prepared the arrest paperwork and DUI citation, and Officer Cox completed the Alcohol Influence Report Form and Refusal Form. Officer Gosnell’s investigation yielded no prior DUI convictions, but Petitioner did have a prior refusal to submit. 

 At the hearing conducted on July 27, 2011, counsel for the Petitioner raised an objection to Officer Gosnell’s narrative concerning statements made by the Petitioner. Specifiically, Petitioner argued that the Miranda warning was insufficient to make him aware that the questioning was for a criminal investigation. Citing to the accident report privilege, Petitioner also argues that, since Officer Gosnell did not conduct the accident investigation, he lacked first-hand knowledge that the Petitioner was the driver. The hearing officer entered an order sustaining the suspension of Petitioner’s license. Petitioner subsequently filed this petition for writ of certiorari.       

In reviewing the administrative 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. Dep’t of Highway Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001). 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).  On review, the Circuit Court is not entitled to reweigh the evidence; it may only determine whether competent substantial evidence supports the hearing officer’s findings. Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).

The accident report privilege no longer applies to administrative license proceedings. §§ 316.066(4), 322.2615 Florida Statutes (2011). The record supports the Hearing Officer’s finding that Officer Gosnell had probable cause to believe that Petitioner was driving under the influence and adequately advised Petitioner of his Miranda rights. The Court cannot reweigh the evidence. Upon consideration, Court finds that the Department afforded Petitioner adequate due process, observed the essential requirements of law, and sustained the suspension based on competent substantial evidence.

Accordingly, it is hereby

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

            DONE AND ORDERED in St. Petersburg, Pinellas County, Florida, on January 6, 2012.

 

Original order entered on January 6, 2012, by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

Copies furnished to:

 

Craig Epifanio, Esquire

5445 16th Street N

St. Petersburg, FL 33703

Attorney for Petitioner

 

 

Damaris E. Reynolds, Esquire

Assistant General Counsel

DHSMV

P.O. Box 540609

Lake Worth, FL 33454-0609

Attorney for Respondent