Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Accident Report Privilege – Breath Testing Procedures – Blood Alcohol Level - hearing officer properly considered the pre-Miranda statements made by the driver during the accident investigation since the accident was a hit-and-run – driver failed to establish that there were substantial differences between the approved testing procedures and the actual testing procedures that would impact validity of the breath test – there is no rule or binding case law that the use of software version 900.08 is unapproved –breath test administrator’s lack of knowledge of chamber size and source of testing solutions does not render breath test invalid – Section 322.2615(7)(a)3 must be read to include formal review of license suspensions based on breath-alcohol level as well as blood-alcohol level --Petition denied. Shatz v. Dept. of Highway Safety and Motor Vehicles, No. 05-0002AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

HELEN MICHELLE SHATZ,

Petitioner,

vs. Appeal No. 05-0002AP-88B

UCN522005AP000002XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

Respondent.

____________________________________________/

AMENDED ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI

THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Response, and the Reply. Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Amended Petition must be denied as set forth below.

The Petitioner, Helen Michelle Shatz (Shatz), seeks review of the Final Order of License Suspension, entered December 7, 2004, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Shatz’s driving privilege was properly suspended for a period of six months for driving under the influence (DUI). In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Shatz was afforded procedural due process, whether the essential requirements of law were observed, and whether the Department’s findings and judgment are supported by competent substantial evidence. See Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

The record shows that on September 25, 2004, at approximately 11:08 p.m., Officer Negersmith, of the Gulfport Police Department, responded to 2811 Kipps Colony Drive South regarding a hit and run to a light pole/mailbox. As set forth in his report, Officer Negersmith first met with the homeowner, Robert Bauman, who stated that he heard a loud bang and observed that someone had struck his new concrete light pole/mailbox; Mr. Bauman did not see a vehicle. Mr. Bauman pointed out that Ernest Bergeron, the security guard on duty, was talking to one of his neighbors about damage to a vehicle. Officer Negersmith walked across to 2814 Kipps Colony South where he met Mr. Bergeron. Mr. Bergeron explained that he observed damage to a GMC parked in the driveway and observed a female operator. As stated in his report, Officer Negersmith approached the driver, identified as Shatz, and informed her that he was conducting an investigation. Shatz consented to Officer Negersmith looking at the GMC, which was registered to Shatz and her husband. Officer Negersmith detected the strong odor of alcohol as Shatz spoke. The GMC had heavy damage to the driver’s side and tan colored concrete on the wheel well, rim, and bumper. Shatz informed Officer Negersmith that her son caused the damage to the GMC with a baseball bat and denied any other knowledge of how the damage occurred. Officer Negersmith walked back across the street to retrieve a broken tail lense which matched the GMC.

Officer Negersmith re-approached Shatz and requested her driver’s license. Officer Negersmith also asked Shatz to shut off the vehicle and close the door as the interior bell kept ringing. After being informed of the Miranda warnings, Shatz agreed to continue speaking to Officer Negersmith. Shatz took full responsibility for the damage but stated she did not cause the damage. Shatz’s husband informed Officer Negersmith that the GMC was fine when he and his wife returned from a school fund-raising event. Shatz’s husband explained that his wife got into an argument with another parent in the limousine ride back from the event, that he and his wife had a verbal argument upon returning home, after which Shatz decided to leave for the night. Officer Negersmith concluded the accident investigation and issued Shatz a citation for leaving the scene of an accident with more than $ 50.00 in damage.

Officer Negersmith proceeded to conduct a DUI investigation. Shatz admitted to consuming two glasses of wine. Shatz submitted to the vertical and horizontal gaze nystagmus which showed several signs of impairment. Officer Negersmith observed that Shatz’s eyes were bloodshot and watery and again noted that Shatz smelled of alcohol. Shatz failed the field sobriety tests and was arrested for DUI. The results of the subsequent breath test were .118g/210L and .113g/210L.[1] After a formal review hearing, the hearing officer sustained Shatz’s six-month license suspension for DUI.

Before this Court, Shatz raises several issues: (1) whether the Department departed from the essential requirements of law by failing to follow Nelson v. State, Department of Highway Safety and Motor Vehicles, 757 So.2d 1264 (Fla. 3d DCA 2000) and Florida Statutes, § 316.066, regarding the use of statements made during an accident investigation; (2) whether the Department departed from the essential requirements of law by failing to invalidate Shatz’s license suspension due to the Department’s non-compliance with approved breath testing sources and methods, and; (3) whether the Department departed from the essential requirements of law for failing to invalidate Shatz’s license suspension because Florida Statutes, § 322.2615, authorizes a license suspension only for an unlawful blood-alcohol level, not an unlawful breath- alcohol level.

In addressing the first issue, the Court finds that the hearing officer properly considered the statements made by Shatz during the accident investigation since this was a hit-and-run accident. See Cummings v. State, 780 So.2d 149, 150 (Fla. 2d DCA 2000)(finding that defendant was a suspected hit-and-run driver and so was not entitled to the confidentiality privilege of § 316.066(4)). Further, because this was an accident, the observations of the security guard relayed to Officer Negersmith during the accident investigation could be considered by the hearing officer. However, for the sake of argument, even excluding Shatz’s pre-Miranda statements and the security guard’s observations, the Court finds that there is still ample evidence in the record to support the hearing officer’s finding that Officer Negersmith had probable cause to believe Shatz was operating a motor vehicle under the influence of alcohol. See e.g. 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”); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same). This evidence includes that the GMC was still running at the time Officer Negersmith approached Shatz, Shatz turned off the GMC at Officer Negersmith’s request, and Shatz’s husband stated that there was no damage to the GMC before his wife decided to leave for the night upon returning from the school event.

In reviewing the second issue, the Court finds that Shatz failed to establish that there were substantial differences between approved testing procedures and the actual testing procedures that would impact the validity of the breath test administered to Shatz. See Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002)(providing that “[a]ny insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid”). Shatz’s argument focuses on the testimony presented by Vicky Fairchild, the Department’s Agency Inspector, who conducted the monthly inspection of the breath test instrument used in this case. Ms. Fairchild testified that the software used in the subject breath test instrument, the 5000 Intoxilyzer, is the R software program, version 900.08, that she did not know the size of the sample chamber, and that she did not know where the testing solutions came from.

The Court finds that there is no rule or binding case that the use of the software version 900.08 is unapproved, or that Ms. Fairchild’s lack of knowledge of the chamber size and the source of the testing solutions renders Shatz’s breath test invalid.[2] As in Alliston, the Court finds that these alleged errors are not proof that the protocol used for inspection of the subject breath test instrument affected the validity of the breath test administered to Shatz. See id. (finding that the lack of an initial registration for the breath test machine and the inspector’s inability to remember whether she followed one specific protocol were not evidence that would affect the validity of the breath test).

Further, the Court finds that the FDLE, the agency charged with the registration and inspection of breath test instruments, mandates two types of maintenance: (1) Florida Administrative Code, Rule 11D-8.006, requires a breath test instrument to be inspected at least once a month by an agency inspector, and; (2) Florida Administrative Code, Rule 11D-8.004, requires the Department to inspect a breath test instrument at least yearly. Since the Department submitted the monthly Agency Inspection Report and the yearly Department Inspection Report, the Court finds that the hearing officer did not err in denying Shatz’s motion to invalidate her license suspension due to the use of an unapproved breath test instrument. See id.; see also Hanna v. State, Department of Highway Safety and Motor Vehicles, 10 Fla. L. Weekly Supp. 679b (Fla. 13th Cir. App. Ct. June 2003)(denying certiorari relief on the issue of whether the Intoxilyzer used was an approved machine when the State introduced into evidence the monthly Agency Inspection Report and annual Department Inspection Report). The Court finds no merit to the Shatz’s contention that the alcohol solutions used to test the subject breath test machine came from an unapproved source, in violation of Rule 11D-8.0035, because Ms. Fairchild did not know from which location the solutions were ordered.

Lastly, the Court finds that the third issue raised by Shatz, that pursuant to Florida Statutes, § 322.2615(7)(a)3, the Department can only sustain a license suspension for an unlawful blood-alcohol level, must fail.[3] As recently explained by the Fifth District Court of Appeal in reviewing the same issue, section § 322.2615(7)(a)3 must be read to include formal review of license suspensions based on breath-alcohol level as well as blood-alcohol level. See Department of Highway Safety and Motor Vehicles v. Patrick, 895 So.2d 1131, 1136 (Fla. 5th DCA 2005). Indeed, recent statutory changes to the 2005 version of this section added the terms “breath-alcohol level” to clarify that an unlawful alcohol level can be determined by either a blood or a breath test.

Therefore, it is,

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

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of April 2006.

______________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_____________________________ _____________________________

PETER RAMSBERGER ANTHONY RONDOLINO

Circuit Judge, Appellate Division Circuit Judge, Appellate Divison

Copies furnished to:

Eilam Isaak, Esquire

4021 N. Armenia Ave., Suite 200

Tampa, FL 33607

Heather Rose Cramer, Assist. General Counsel

Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, # 230

Lake Worth, FL 33467

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL 33762

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[1] The breath test affidavit indicates a breath alcohol level of .130g/210L. The Court finds that the discrepancy between the affidavit and the hearing officer’s finding of .113g/210L is inconsequential as both results are over the legal limit.

[2]The Court notes that in recent county court decision, State v. Fuller, 12 Fla. L. Weekly Supp. 808a (Fla. Broward Cty. Ct. May 2005), the trial court provided an in-depth analysis of the 5000 Intoxilyzer instrument in considering the defendants’ motions to suppress based on the use of an alleged unapproved breath test instrument. In ultimately denying the defendants’ requests, the trial court considered the testimony from the head of FDLE’s Alcohol Testing Program which conducted studies, in 2003 and 2005, on the 5000 Intoxilyzer using different software versions. The results of the studies demonstrated “that not a single instrument tested by FDLE had failed or erred” using different software versions.

[3] The 2004 version stated that in a formal review hearing, the hearing officer must determine “[w]hether the person had an unlawful blood-alcohol level as provided in s. 316.193.”