Petition for Writ of Certiorari
to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – field sobriety tests – hearing
officer erred in considering FSTs that were obtained as a result of misinformation
– FSTs are not mandatory pursuant to Florida’s implied consent law – hearing
officer’s consideration of FSTs is harmless error – even without FSTs there
is competent substantial evidence in the record to support finding of probable
cause to make lawful DUI arrest --Petition denied. Peden v. Dept. of Highway Safety and Motor Vehicles,
No. 04-0043AP-88B (6th
IN AND
APPELLATE
DIVISION
CRAIG D. PEDEN,
Petitioner,
vs.
Appeal No. 04-0043AP-88B
UCN522004AP000043XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR
VEHICLES,
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, Craig D. Peden
(Peden), seeks review of the Final Order of License Suspension, entered April
22, 2004, in which the hearing officer for the Respondent, Department of Highway
Safety and Motor Vehicles (Department), concluded that Peden’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 (
The record shows that on February 26, 2004, at approximately 11:53 p.m., Officer Burke activated his emergency overhead lights to stop Peden’s vehicle when Officer Burke observed the vehicle traveling south in the northbound lane, head-on towards Officer Burke. Upon making contact with Peden, Officer Burke smelled the odor of alcohol and noticed that Peden’s eyes were bloodshot and watery and that his speech was slurred. Officer Burke conveyed these observations to Officer Galley, who responded to conduct the DUI investigation. Officer Galley noticed the same signs of impairment and also observed that Peden’s face appeared flushed. In response to Officer Galley’s question as to whether Peden had been drinking, Peden stated he had “two beers.” Peden complied with Officer Galley’s request to step away from the vehicle and have his eyes checked. The nystagmus evaluation showed signs of impairment and Peden swayed back and forth while Officer Galley checked his eyes. Peden failed the subsequent field sobriety tests and was arrested for DUI. Peden was informed of the implied consent law but refused to take the breath test.
Peden’s primary argument on appeal is that the Department
erred in failing to invalidate his license suspension as it was the result
of an unlawful DUI arrest based on coerced field sobriety tests. According to Officer Galley’s testimony and
his arrest report, Peden, who initially refused to perform the requested field
sobriety tests, agreed to take the tests after Officer Galley informed Peden
that the tests were mandatory pursuant to
However, the Court finds this error harmless as, even
without the results of the field sobriety tests, there is competent substantial
evidence to support the finding that Officer Galley had probable cause to
arrest Peden for DUI. There is no dispute
that the initial traffic stop was lawful. Thereafter, Officer Galley observed several
signs of impairment including that Peden had the odor of alcohol, bloodshot,
watery eyes, slurred speech, flushed face, nystagmus deviation and swaying
back and forth; further, Peden admitted that he’d consumed alcohol. Therefore, even without the field sobriety tests,
Officer Galley had ample evidence to arrest Peden for DUI. Accordingly, the Court finds that the hearing
officer’s conclusion that the arresting officer had probable cause to believe
Peden was driving under the influence and was lawfully arrested is supported
by competent substantial evidence and conforms to the essential requirements
of law. See Department of
Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st
DCA 1997)(finding that probable cause exists “where the facts and circumstances,
as analyzed from the officer’s knowledge, special training and practical experience,
and of which he has reasonable trustworthy information, are sufficient in
themselves for a reasonable man to reach the conclusion that an offense has
been committed”).
The Court finds no support for Peden’s argument that
the hearing officer in this case did not have the proper training to act as
the trier-of-fact in the proceedings below or that the hearing officer failed
to consider all the relevant evidence. Although
the Court would agree with the general position that hearing officers’ formal
training in the law may be prudent given the constitutional and evidentiary
issues involved in DUI review hearings,
[2]
the law only requires that a hearing officer remain
an impartial decision maker and base his/her final decision on the preponderance
of the evidence. See Department of Highway Safety and
Motor Vehicles v. Pitts, 815 So.2d 738 (
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:
Jeffrey G. Brown, Esquire
Carlos J. Raurell, Assistant General Counsel
Bureau of Administrative Reviews