Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S
LICENSES- hearing officer charged with resolving time discrepancies between breath
test affidavit and arrest affidavit as to when Petitioner was arrested -
Petition denied. Stafisz v. State of
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
APPELLATE DIVISION
JOHN J. STAFISZ,
Petitioner,
vs. Appeal No: 51-2006-CA-754WS
STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES,
Respondent.
____________________________/
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of
Certiorari and the Response to Petition
for Writ of Certiorari. Upon consideration of the same and being otherwise
fully advised, the Court finds that the Petition must be denied as set forth
below.
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 (
Following petitioner’s arrest for driving under the influence, the petitioner requested a formal administrative review of his license suspension. A formal review was held for that purpose and the hearing officer who presided over the case made the following findings of fact:
On November 14, 2005, at 10:08 P.M. Officer Denton of the New Port Richey Police Department, was approached from the rear by a vehicle at a high rate of speed and failing to maintain a single lane. Officer Denton had to take evasive action to avoid a crash. The vehicle passed the officer and then slammed on its brakes to avoid hitting another vehicle. A traffic stop was conducted and the driver was identified as [Petitioner].
[Petitioner] exhibited signs of intoxication; a strong odor of an alcoholic beverage, bloodshot and watery eyes, slurred speech and he admitted drinking. [Petitioner] refused to perform any of the Field Sobriety Exercises.
At 10:12 p.m., Officer Denton arrested [Petitioner] for DUI and read Implied Consent. [Petitioner] refused to submit to a breath test and his privilege to drive was suspended for his refusal.
The court referred to petitioner’s motions to invalidate the suspension in which he argued: (1)Inconsistencies in the report regarding the time of arrest and the time of the request for the breath test and (2) [Petitioner’s] inability to submit to a breath test due to his unusually strong gag reflex, and denied them both. Petitioner’s license suspension was upheld.
Petitioner argues
that the record is unclear as to the sequence of events after a DUI
investigation was conducted. According
to the DHSMV Affidavit of Refusal to Submit to Breath Urine or Blood Test,
As petitioner
correctly argues, the time the Implied Consent was read to petitioner is
critically important in this case since Florida Statute 316.1932 requires the
test be incidental to a lawful arrest. Officer Denton’s Probable Cause Affidavit,
however, clearly indicates that the defendant was placed under arrest before
the officer read him implied consent and requested the defendant, several
times, to submit to a breath test. Where there is competent evidence to support
the hearing officer’s findings, this Court must affirm. It is neither the function or the prerogative
of a circuit court to reweigh evidence and make findings when it undertakes a
review of a decision of an administrative forum. State of
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers, at New Port Richey,
_______________________
Primary Appellate Judge
__________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Curtis M. Crider, Esq.
Carlos J. Raurell, Esq.