Petition for Writ of Certiorari
to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Breath Test
-- where arresting officer observed petitioner from 2:34 a.m. until 2:54 a.m.,
20-minute observation period required by Fla. Admin. Code Rule 10D-024(1)(e)
was substantially complied with – Petition denied. Deas v. Dept. of Highway Safety and Motor
Vehicles, No. 03-5046AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL
CIRCUIT
IN AND
APPELLATE DIVISION
DAVID G. DEAS,
Petitioner,
vs.
Appeal No. 03-5046AP-88B
UCN522003AP005046XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
Respondent.
____________________________________________/
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari and the Response. Upon consideration
of the same, the record and being otherwise fully advised, the Court finds
that the Petition must be denied as set forth below.
The Petitioner, David G. Deas (Deas), seeks review of the Final Order
of License Suspension, entered August 14, 2003, in which the hearing officer
for the Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Deas’ driving privilege was properly suspended for a period
of six months for driving under the influence (DUI). In reviewing the Department’s order, this Court
must determine (1) whether procedural due process had been accorded, (2) whether
the essential requirements of law had been observed, and (3) whether the administrative
findings and judgment were supported by competent substantial evidence.
See Vichich v. Department of Highway Safety and Motor Vehicles,
799 So.2d 1069, 1073 (
The only issued raised by Deas is whether the Department improperly failed to invalidate his license suspension because the arresting officer did not comply with the 20-minute observation period as required by Florida Administrative Code Rule 10D-024(1)(e). Without any evidentiary support, Deas specifically challenges the incremental seconds of the minutes noted by the arresting officer, from 2:34 a.m. until 2:54 a.m., speculating that the 20-minute observation period was not complied with exactly. However, the Court finds that the observation period was in substantial compliance with code requirements. See Kaiser v. State of Florida, 609 So.2d 768, 770 (Fla. 2d DCA 1992)(holding that for purposes of DUI statutes, breath test is admissible if there is probative evidence that the test was performed substantially in accordance with methods approved by HRS). Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is denied.
DONE AND
ORDERED in Chambers, at
___________________________________
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies
furnished to:
J. Kevin Hayslett, Esquire
Elida Landry, Assistant General Counsel
Bureau of Driver Improvement