Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – breath test – record
evidence showed that Petitioner had a medical condition that caused her to
frequently belch, as she was during the breath test – no record evidence that
medical condition prevented Petitioner from providing breath sample – hearing
officer, as trier of fact, must resolve conflicting evidence as to whether
Petitioner was able to provide breath sample - Petition denied. Wilkinson v. Dept. of Highway Safety and Motor Vehicles, No.
05-0059AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
CAROLE WILKINSON,
Petitioner,
vs. Appeal No. 05-0085AP-88B
UCN522005AP000085XXXXCV
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,
Carole Wilkinson (Wilkinson), seeks review of the Final Order of License
Suspension, entered September 22, 2005, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
concluded that Wilkinson’s driving privilege was properly suspended for a
period of one year for driving under the influence (DUI). In reviewing the Final Order and the
administrative action taken by the Department, this Court must determine
whether Wilkinson 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 (
The record shows that on July 31, 2005, at approximately 2:30 a.m., Sergeant Darroch, of the Pinellas Park Police Department, observed a vehicle approaching from behind him at a high rate of speed. The vehicle jerked to the north and drove up onto the median. Concerned for the driver’s safety and the safety of others, Sergeant Darroch conducted a traffic stop. Officer Griffiths, of the same agency, arrived to conduct a DUI investigation.
Upon making contact with the driver, identified as Wilkinson, Officer Griffiths observed several signs of impairment, including that Wilkinson smelled of alcohol, had red, dilated eyes, and was unable to stand without assistance. Wilkinson stated that she was not ill or sick. Wilkinson informed Officer Griffiths that she was nervous and always feels like she is going to vomit when she is very nervous. Wilkinson made noises like she was going to vomit, but did not. Wilkinson failed the field sobriety tests and was arrested for DUI. After being transported to the central breath testing facility, Wilkinson began to burp continuously and make noises, stating that she felt sick again. Officer Griffiths asked Wilkinson if she would submit to a breath test to which she responded “no.” Officer Griffiths then read Wilkinson the Implied Consent Warning. Wilkinson stated that she understood the warning and did not want to provide a breath sample.
At the formal review hearing, the
breath test operator, Malcolm Deane, testified that he prepared the intoxilyzer
and asked Wilkinson to submit to a breath test to which she responded “no.” Mr. Deane testified that Wilkinson provided
no explanation as to why she would not submit to the breath test. Wilkinson also testified at the formal review
hearing and explained that she suffers from a medical problem that causes her
to burp without stopping. Wilkinson
stated that she wanted to submit to the breath test, but could not stop
burping. Wilkinson presented medical
reports from Dr. Ellis, dated August 1, 2005, and August 4, 2005, concerning
her medical condition. She also
presented a Discharge Summary from
Before
this Court, Wilkinson argues that the license suspension should have been
invalidated as Wilkinson did not knowingly or intentionally refuse to submit to
a breath test. In reviewing the record,
this Court cannot conclude that the hearing officer erred in sustaining the
license suspension. Initially, the Court
finds that it “must accept evidence which, like the material testimony of the
police officers, is neither impeached, discredited, controverted, contradictory
within itself, or physically impossible.”
See State v. Fernandez, 526 So.2d 192, 193 (
The Court finds that these facts present conflicting evidence as to whether Wilkinson’s medical condition prevented her from providing a breath sample. Accordingly, as the trier of fact, it was the duty of the hearing officer to resolve the conflicting evidence. See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995). The Court cannot reweigh the evidence to reach a different conclusion. See id.
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
_____________________________ _____________________________
PETER
RAMSBERGER ANTHONY
RONDOLINO
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Curtis M. Crider, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews