Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – accident report privilege – accident report privilege, as set forth in Florida Statutes, section 316.066(7), did not exclude statements made by driver when the driver was involved in hit and run accident - hearing officer did not depart from the essential requirements of law in considering accident investigation report - final order of license suspension support by competent substantial evidence in the record - Petition denied. Tierney v. Dept. of Highway Safety and Motor Vehicles, No. 07-0025AP-88B (Fla. 6th Cir. App. Ct. October 1, 2007).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

KYLE CHRISTOPHER TIERNEY,

Petitioner,

vs. Appeal No. 07-0025AP-88B

UCN522007AP000025XXXXCV

STATE OF FLORIDA, DEPARTMENT 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, 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, Kyle Christopher Tierney (Tierney), seeks review of the Findings of Fact, Conclusions of Law and Decision (Order), entered April 18, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), revoked Tierney’s driving privilege for driving under the influence (DUI). In reviewing the Order and the administrative action taken by the Department, this Court must determine whether the driver 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).

After a formal review hearing, the hearing officer made the following findings of fact:

On March 11, 2006, the petitioner was operating a motor vehicle. Officer Tammi Severin of the St. Pete Beach Police Department arrived and made contact with the petitioner. Officer Severin smelled an odor of an alcoholic beverage on the petitioner’s breath and noticed that his eyes were bloodshot, and he was unsteady on his feet. Officer Severin asked the petitioner to perform Field Sobriety Task [sic], of which he performed poorly and was subsequently arrested for DUI. The petitioner was transported to jail and read implied consent. The petitioner refused to submit to a breath test.

The record includes Officer Severin’s Arrest Narrative which states that Tierney was involved in a hit-and-run accident. After the accident investigation, Tierney was arrested for hit-and-run and transported to the St. Pete Beach Police Department. Due to Tierney’s aggressive demeanor and signs of intoxication, including that Tierney had unsteady balance, bloodshot eyes, and the odor of alcohol, Officer Severin read Tierney his Miranda rights and commenced a DUI investigation. Tierney was then arrested for DUI. Counsel for Tierney moved to invalidate Tierney’s license suspension arguing that information obtained during the accident investigation was privileged and that there was no evidence that Tierney was in actual physical control of a motor vehicle. The hearing officer denied both motions and sustained Tierney’s license suspension for refusing to submit to a breath test.

Before this Court, Tierney argues that the Department did not follow the essential requirements of law when it failed to exclude statements made pursuant to the accident report privilege and that there is not competent substantial evidence to support the Department’s finding that Tierney was in actual physical control of a motor vehicle. Initially, the Court reiterates that the hearing officer was charged with determining, by a preponderance of the evidence, that there was probable cause to believe that Tierney was in actual physical control of a motor vehicle while under the influence, that Tierney refused to submit to a breath, blood, or urine test, and that Tierney was informed his driving privilege would be suspended for one year for a first refusal and eighteen months for a second or subsequent refusal. See Fla. Stat. 322.2615(7)(b)1-4. The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Tierney’s arrest. See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).

In addressing the specific issues raised by Tierney, Florida Statutes, section 316.066(7), states, in pertinent part:

Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. No such report or statement shall be used as evidence in any trial, civil or criminal.

The accident report privilege set forth in section 316.066 is applicable in administrative proceedings.[1] See Nelson v. State, Department of Highway Safety and Motor Vehicles, 757 So.2d 1264, 1265 (Fla. 3d DCA 2000); Department of Highway Safety and Motor Vehicles v. Perry, 702 So.2d 294, 295 (Fla. 5th DCA 1997). However, statements made by a driver suspected of hit-and-run are admissible as an exception to the accident report privilege. See Cummings v. State, 780 So.2d 149, 150 (Fla. 2d DCA 2000); see also Shatz v. State, Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 772 (Fla. 6th Cir. App. Ct. April 25, 2006). Hence, Tierney’s admission that he was driving, both during the accident investigation and subsequent DUI investigation after he was read Miranda, support the hearing officer’s conclusion that Tierney was in actual physical control of a motor vehicle under the influence of alcohol. See id.; see also Vedner v. State, 849 So.2d 1207, 1212 (Fla. 5th DCA 2003)(explaining that statements made voluntarily post-Miranda are admissible in civil, criminal or administrative proceedings).

Therefore, it is,

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

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of September 2007.

______________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_____________________________ _____________________________

PETER RAMSBERGER AMY M. WILLIAMS

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Craig Epifanio, Esquire

5445 – 16th Street North

St. Petersburg, FL 33703

Jason Helfant, Assistant General Counsel

Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL 33135

Bureau of Administrative Reviews

4585 – 140th Avenue North

Clearwater, FL 33762

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[1] The Court notes that recent changes in Florida Statutes, 322.2615(2), which now states “[n]otwithstanding s. 316.066(7), the crash report shall be considered by the hearing officer,” may change this holding. While the Legislature amended 322.2615(2) to permit the hearing officer to consider the accident report, the Legislature failed to amend 316.066(7), which specifically excludes from a civil proceeding a report given by a person involved in a crash. Given the applicability of Cummings to the facts of this case, the Court needn’t address this apparent conflict in this decision.