Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department
of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Breath Test – affidavit
of refusal and testimony of officer that Petitioner refused breath test was
competent substantial evidence to support hearing officer’s finding that Petitioner
refused breath test after being properly informed of implied consent law –
Petition denied. Evansen v. Dept. of Highway Safety and Motor Vehicles,
No. 03-5055AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
MATTHEW EVANSEN,
Petitioner,
vs.
Appeal No. 03-5055AP-88A
UCN522003AP005055XXXXCV
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, Matthew Evansen (Evansen), seeks review of the Final
Order of License Suspension, entered September 5, 2003, in which the hearing
officer for the Respondent, Department of Highway Safety and Motor Vehicles
(Department), concluded that Evansen’s driving privilege was properly suspended
for a period of one year 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 (
On appeal, Evansen argues that the hearing officer erred in sustaining his license suspension as there is no evidence that Evansen was informed that if he refused to submit to a breath test, his driving privilege would be suspended for a period of one year, or in the case of a second or subsequent refusal, for a period of eighteen months. However, the record shows that the hearing officer considered the Affidavit of Refusal, signed by Officer Smith, of the Clearwater Police Department, and the testimony of Officer Medlin, of the same agency, who testified that he recalled Evansen saying that he refused to take the test “...because he had witnessed several TV shows that told him he shouldn’t take the breath test.”
The Court finds that, as the trier
of fact, the hearing officer was in the best position to evaluate the evidence
and the witness and to make a determination about whether Evansen was properly
informed of the implied consent and the consequences of his refusal to submit
to a breath test. See Department
of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla.
5th DCA 1994). Further, although the
Affidavit of Refusal was not notarized, the hearing officer could properly
consider the Affidavit as evidence. See
Department of Highway Safety and Motor Vehicles v. Perry, 751 So.2d
1277 (
Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of Certiorari is denied.
DONE AND
ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Sami Thalji, Esquire
Rhonda F. Goodman, Assist. General Counsel
Bureau of Driver Improvement