Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – traffic stop – probable cause – confusion doctrine – traffic stop was lawful where driver appeared to be cutting off another vehicle - officer had probable cause to believe traffic fraction occurred – under fellow officer rule, it is of no consequence that officer conducting traffic stop did not believe there was probable cause to arrest driver for DUI at the time his observations were conveyed to investigating officer, who ultimately made the arrest – under confusion doctrine, driver has affirmative duty to make any confusion caused by having two rights read together known to law enforcement so that further clarification can be provided – there was no evidence that driver ever informed officer that she was confused by having her Miranda rights and the implied consent law read together --Petition denied. Bolek v. Dept. of Highway Safety and Motor Vehicles, No. 05-0056AP-88B (Fla. 6th Cir. App. Ct. Dec. 16, 2005).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

GAYLE A. BOLEK,

Petitioner,

vs. Appeal No. 05-0056AP-88B

UCN522005AP000056XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

Respondent.

____________________________________________/

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

THIS CAUSE came before the Court on the 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 Petition must be denied as set forth below.

The Petitioner, Gayle A. Bolek (Bolek), seeks review of the Final Order of License Suspension, entered June 24, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Bolek’s driving privilege was properly suspended for a period of twelve 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 Bolek 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 March 6, 2005, at approximately 12:35 a.m., Officer Lulek, of the Clearwater Police Department, was stopped behind a vehicle at a traffic light at the intersection of State Road 580 and McMullen Booth Road. Officer Lulek was going westbound on 580 in the left through-lane. When the light turned green, Officer Lulek observed a vehicle in the center through-lane turn left, nearly hitting the vehicle in front of him. Officer Lulek observed the vehicle travel southbound on McMullen Booth driving between the middle and curb lanes and conducted a traffic stop. Upon making contact with the driver, identified as Bolek, Officer Lulek smelled the strong odor of alcohol and observed that Bolek’s eyes were bloodshot. Officer Lulek requested Bolek to exit the vehicle to ensure that the smell was emanating from Bolek and not her passenger. Bolek had difficulty maintaining her balance and swayed from side to side. Officer Lulek continued to smell the strong odor of alcohol. Officer Harris responded to conduct a DUI investigation and was informed of Officer Lulek’s observations. Officer Lulek issued a citation for improper turn and concluded his traffic investigation.

In conducting her DUI investigation, Officer Harris also smelled the odor of alcohol and observed that Bolek’s eyes were bloodshot. Bolek refused to have the HGN test administered and refused to perform the field sobriety tests. Bolek was arrested for DUI and transported to the breath testing facility, at which time she was informed of her Miranda rights. Bolek was read the implied consent warning. Bolek refused to take the requested breath test. After a formal review hearing, the hearing officer upheld the Department’s suspension of Bolek driver’s license for refusing to take the breath test.

Before this Court, Bolek argues that there was not probable cause to conduct a traffic stop of Bolek, that there was not probable cause to arrest Bolek for DUI, and that Bolek’s refusal to take the breath test is invalid based on the confusion doctrine. The Court finds that Bolek’s request for certiorari relief must be denied. First, the record evidence shows that Officer Lulek had an objectively reasonable basis for conducting the traffic stop. See Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So.2d 1171, 1174 (Fla. 2004)(explaining the test to be applied by the circuit court on certiorari review of Department action). While Bolek testified that she made the left turn in front of a friend’s vehicle, at the friend’s prompting, Bolek also testified that it appeared she was “cutting this car off” and does not contest the improper turn citation. The Court finds the traffic stop was lawful as Officer Lulek had probable cause to believe that a traffic infraction had occurred. See State v. McCabe, 845 So.2d 327, 329 (Fla. 2d DCA 2003)(finding defendant’s speeding infraction was sufficient to provide probable cause to justify stop, even though officer’s actual purpose in stopping defendant was to investigate his unfounded suspicion that defendant was under the influence).

Thereafter, under the fellow officer rule, Officer Lulek lawfully relayed his observations to Officer Harris, who, in turn, developed probable cause to arrest Bolek for DUI. See Sawyer v. State, 905 So.2d 232, 234 (Fla. 2d DCA 2005)(explaining that under the fellow officer rule, the combined observations of two or more officers are united to establish probable cause for arrest). Although one factor, standing alone, would be insufficient to establish probable cause, the Court finds that the totality of Officer Lulek’s and Officer Harris’ observations were sufficient to support Bolek’s arrest for DUI. See Department of Highway Safety and Motor Vehicles v. Silva, 806 So.2d 551, 554 (Fla. 2d DCA 2002)(providing that probable cause exists where the facts and circumstances, as analyzed from the officer’s knowledge, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed). The Court finds that it is of no consequence that Officer Lulek testified that he did not perceive there to be probable cause to arrest Bolek for DUI at the point he conveyed his observations to Officer Harris, who ultimately made the arrest.

In addressing the third issue, Bolek argues that her refusal to take the breath test is invalid as she was confused by having her two rights read together, Miranda rights and the implied consent law. The “confusion doctrine” holds that a licensee’s refusal to submit to a breath test will be excused if the licensee is confused by having the two rights read together and the officer does not inform the suspect that Miranda rights do not apply to the decision of whether to take the breath test. See Wright v. Arkansas, 288 S.W.2d 209, 212 (Ark. 1986); see also Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002). The confusion doctrine has not been addressed by Florida courts at the District Court level. However, this Court has recently held that the licensee has an affirmative duty to make any confusion known to law enforcement, so that law enforcement is aware that further explanation is needed. See Beyer v. Department of Highway Safety and Motor Vehicles, Appeal No. 05-0017AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005)(agreeing with Ringel, supra). There is nothing in the record to indicate that Bolek ever informed Officer Harris that she was confused by having her Miranda rights and the implied consent law read together. Therefore, it is,

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

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of December 2005.

_______________________________

JOHN A. SCHAEFER

Circuit Judge, Appellate Division

_______________________________ ______________________________

LAUREN C. LAUGHLIN JAMES R. CASE

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL 33765

Carlos J. Raurell, Assistant General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL 33135

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL 33762