Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – breath test affidavit – findings
of fact - nothing in record to rebut presumption that administered breath tests
substantially complied with applicable regulations – Department did not receive
presumption of impairment as breath test affidavit was defective because
operator failed to sign – hearing officer could consider other documents in
non-affidavit form in determining whether Petitioner had an unlawful alcohol
level – hearing officer not required to make specific findings in ruling on
issues raised during formal review hearing - Petition denied. Stott v. Dept. of Highway
Safety and Motor Vehicles, No. 06-0023AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
JAMES ALLEN STOTT,
Petitioner,
vs. Appeal No. 06-0023AP-88B
UCN522006AP000023XXXXCV
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, James Allen Stott (Stott), seeks review of the Final Order of
License Suspension, entered March 10, 2006, in which the Respondent, Department
of Highway Safety and Motor Vehicles (Department), suspended Stott’s driving
privilege for a period of six months for driving under the influence. In reviewing the Final Order and the
administrative action taken by the Department, this Court must determine
whether Stott 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 (
After a formal review hearing, the hearing
officer made the following findings of fact, which neither party disputes:
On January 11, 2006, at approximately 11:40 p.m., Deputy Hough of the
Pinellas County Sheriff’s Office stopped and cited a vehicle for running a red
light. The driver, James Stott, had a
strong odor of alcoholic beverage on his breath, his eyes were bloodshot and
his speech was slurred. Mr. Stott
displayed further clues of impairment on the ensuing sobriety tests. Mr. Stott was subsequently placed under arrest
for DUI and transported to Central Breath Testing (CBT) at the county
jail. Once at CBT, Mr. Stott submitted
to a breath test. The results were
.086g/210L and .080g/210L. Mr. Stott’s
driving privilege was suspended for driving with an unlawful breath alcohol
level.
At the conclusion of the formal review
hearing, the hearing officer sustained Stott’s license suspension for a period
of six months for DUI.
On appeal, Stott raises two issues: (1) whether the breath test affidavit was defective because it was unsworn and there was not evidence that the breath test operator had a valid permit to conduct the breath test, and; (2) whether the hearing officer departed from the essential requirements of law by failing to make specific findings in ruling on issues raised during the formal review hearing.
Initially, the Court finds that
there is nothing in the record to rebut the presumption that the administered
breath tests substantially complied with the applicable regulations. See Department of Highway Safety
and Motor Vehicles v. Alliston, 813 So.2d 141, 144 (
Without the breath test affidavit
being notarized, it is defective such that the Department did not receive the
benefit of the presumption of impairment that an affidavit normally
affords. See
In addressing the last issue, the Court finds that Stott failed to cite to any statutory or case law in support of his argument that the hearing officer is required to make specific findings in addressing issues raised during the formal review hearing.
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:
Frank W. McDermott, Esquire
St.
Pete
Heather Rose Cramer, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews