Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVERíS LICENSES Ė Suspension Ė The DHSMV properly suspended Petitionerís driverís license, as the stop of Petitioner was lawful.Petition denied.  Riscile v. Florida Department of Highway Safety and Motor Vehicles, No. 12-AP-000002-WS (Fla. 6th Cir. App. Ct. April 23, 2012).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

DAVID LEONARD RISCILE,†††††

†††††††††††††††††††† Petitioner,

 

v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Case No: †††† 51-2012-AP-000002-WS/P

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

 

STATE OF FLORIDA,

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES,

DIVISION OF DRIVERS LICENSES ††††††††††††††††††††††††††††††††††††

†††††††††††††††††††† Respondent.††††††††††††††††††††††††††††††††††††††††††††††††††

______________________________________/

Petition for Writ of Certiorari

 

Randall C. Grantham, Esq.

for Petitioner

 

Richard M. Coln, Esq.

Assistant General Counsel

Department of Highway Safety & Motor Vehicles

for Respondent

 

 

ORDER AND OPINION

 

Petitioner seeks certiorari review of the Department of Highway Safety and Motor Vehicles hearing officerís final order suspending his driverís license.Petitioner argues that the Department erred in suspending his driverís license pursuant to Florida Statute 322.2615 in that the stop of Petitioner was unlawful.Since this Court finds that the officer was justified in stopping Petitioner, this court shall deny Petitionersí Petition for Writ of Certiorari, as set forth below.

FACTUAL BACKGROUND

Petitioner had a valid driverís license prior to his arrest for DUI on October 29, 2011 by the Pasco County Sheriffís Department.Petitioner timely filed a request for formal review of his driverís license suspension with the Department of Highway Safety and Motor Vehicles Bureau of Administrative Review in Clearwater.A formal review hearing was held on December 20, 2011 before Officer Leslie Geoffroy.

††††††††††††† After the formal review hearing, Hearing Officer Geoffroy found that Corporal Medina of the Pasco County Sheriffís Office observed Petitionerís vehicle traveling with smoke emanating from underneath.Corporal Medina conducted a traffic stop and made contact with the driver.During their contact, Corporal Medina observed several indicators of impairment and requested a DUI investigation.After Deputy Anthony Peterson arrived and made contact with Petitioner, he detected a strong odor of alcohol on Petitionerís breath, bloodshot and watery eyes, and unsteadiness.Deputy Peterson asked Petitioner to perform field sobriety exercises from which he showed signs of impairment.Petitioner was subsequently arrested for DUI.Petitioner was read the implied consent warning, but nonetheless refused to submit to a blood test.The hearing officer concluded that sufficient cause existed to sustain Petitionerís suspension and denied Petitionerís motion to invalidate the suspension in a written order, on December 22, 2011.Petitioner timely filed this Petition for Writ of Certiorari on January 20, 2012, challenging the order suspending his driving privileges for refusing to submit to a breath test as provided by Florida Statute 316.193.

††† ††††††††††††††††

LAW AND ANALYSIS

This Courtís scope of review is limited to whether the Departmentís actions (1) accorded procedural due process; (2) observed the essential requirements of law; and (3) were supported by substantial, competent evidence.DHSMV v. Haskins, 752 So. 2d 625 (Fla. 2d DCA 1999); Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980).This Court shall not reweigh the evidence or substitute its judgment for that of the hearing officer.Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).††

In a formal review conducted under Florida Statute 322.2615, the Department hearing officer must determine whether sufficient cause exists to sustain the administrative suspension of a driverís license.Where the driverís license was suspended for driving with an unlawful blood alcohol level, the scope of review is limited to:

1. ††††† Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.

The hearing officer need only resolve the foregoing issues on the basis of a preponderance of the evidence.The legality of the stop, however, is properly a subject to be considered by the hearing officer at the administrative hearing under ß 322.2615.McLaughlin v. DHSMV, 74 So. 3d 1070 (Fla. 2011).In this case, the hearing officer resolved each of the statutory issues against Petitioner and considered the legality of the stop of Petitionerís vehicle.

Petitioner contends that the Department erred in suspending his driverís license because the stop was unlawful since Corporal Medina did not have probable cause to believe that a traffic infraction had been committed to justify the stop.Petitionerís arguments notwithstanding, the record evidence clearly established a sufficient legal basis to stop Petitionerís vehicle.Petitioner was observed driving his 2001 Chrysler emitting a large amount of smoke.While Petitioner was not cited for any traffic offenses, other than DUI, the continuous stream of smoke emanating from his vehicle constitutes a violation of Florida Statute 316.272.Section 316.272(2) provides, ďThe engine and power mechanism of every motor vehicle shall be so equipped and adjusted as to prevent the escape of excessive fumes or smoke.ĒFurthermore, section 316.610(1) states, ďAny police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.ĒAs such, Corporal Medina had sufficient reasonable suspicion to stop Petitioner.The stop of Petitionerís vehicle was lawful, and the Departmentís order sustaining Petitionerís suspension conforms to the essential requirements of law and is supported by substantial, competent evidence.

††††††††† It is therefore,

 

††††††††† ORDERED AND ADJUDGED that Petitionerís Petition for Writ of Certiorari is hereby DENIED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 23rd day of April 2012.

 

Original order entered on April 23, 2012 by Circuit Judges Stanley R. Mills, Michael F. Andrews, and Daniel D. Diskey.

 

 

 

 

Copies to:

Randall C. Grantham, Esq.

Richard M. Coln, Assistant General Counsel