Appeal No.512006CA3936ES

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – traffic stop -- legislature has specifically removed the consideration of the lawfulness of the stop, (by removing the requirement that the hearing officer determine the lawfulness of the arrest) from the scope of review of the hearing officer)- the hearing officer found all the elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test, supported by a preponderance of the evidence. Petition denied. Lycans v. DHSMV, No. 512006CA3936ES (6th Cir. App. Ct. April 23, 2007).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

DAVID LYCANS,

Petitioner,

STATE OF FLORIDA,

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES,

Respondent,

______________________________________/

Jack D. Hoogewind, Esq.

Attorney for Petitioner

Thomas C. Mielke, Esq., DHSMV

For Respondent.

ORDER DENYING PETITION FOR WRIT OF CERTIORIARI

THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response to Petition for Writ of Certiorari, and Reply to Response. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

Following petitioner’s arrest for driving under the influence, petitioner requested a review of the department’s suspension of his driver’s license for failure to submit to chemical testing. There was no testimony taken at the hearing. The department relied solely on documentary exhibits. The exhibits included the following documents:

A. Two Uniform Traffic Citations, one for not wearing a seatbelt and one for failure to yield to oncoming traffic (signed by Deputy Metzler, Dade City Police Department).

B. A Florida DUI citation (signed by Officer Archibald).

C. Pasco County Complaint Affidavit (signed by Officer Archibald) stating the following;

While on patrol I was out with . . . .Deputy Metzler on a traffic stop that he conducted on a blue Saab 2 DR …for failed to yield to oncoming traffic. Dep Metzler advised that he believed the driver was under the influence of alcohol. I made contact with driver (Def). Def had red glassy eyes, mumbled spe[e]ch, and appeared to be confused. Def stated that he had approx 4 beers watching the football game. Def. did have a[n] odor of alcohol coming from his person. Def did submit to F.S.T’s and did perform poorly. Def was placed under arrest for DUI. Def refused breat[h] test./PCSO citations 5884-EPC4, 5883-EPC3.

D. Pasco County Alcohol/Drug Influence Report (signed by Officer Archibald)

E. FDLE Uniform Probable Cause Affidavit (signed by Officer Archibald)

F. Uniform Alcohol Influence Report (signed by Officer Archibald)

G. Affidavit of Refusal to Submit to Breath, Urine, or Blood Test (signed by Officer Archibald)

The hearing officer found the following facts supported by a preponderance of the

evidence:

On October 15, 2006, at approximately 8:02 p.m., Officer Archibald responded to a traffic stop conducted by Deputy Metzeler. Deputy Metzeler had stopped a vehicle driven by David W. Lycans for failing to yield to oncoming traffic. When he met Mr. Lycans, Officer Archibald smelled an[] odor of an alcoholic beverage on his breath, his eyes were watery and glassy, his speech was mumbled, and he was unsteady on his feet. Mr. Lycans admitted that he had been drinking. Officer Archibald asked Mr. Lycans to perform some Field Sobriety Exercises which he performed poorly. Mr. Lycans was arrested and asked to take a lawful breath test. Mr. Lycans refused to take the breath test.

Petitioner’s license suspension was sustained. Petitioner now seeks review of the final order. On review, Petitioner argues that in order to sustain a license suspension, the department must show by substantial competent evidence that his vehicle was lawfully stopped, relying on Dobrin v. DHSMV, 874 So. 2d 1171 (Fla. 2004). Petitioner argues that in this case, the arresting officer did not see the petitioner driving and that the only evidence in the record to justify the vehicle stop, by another officer, is that the arresting officer was told by the officer who conducted the stop that he had stopped petitioner “for failure to yield to oncoming traffic.” Petitioner argues that ‘mere conclusory’ statements are not enough and that the Department did not meet its burden by relying on only conclusory statements that a traffic violation occurred, especially when these statements came from another officer who actually made the stop. Petitioner argues that the suspension must therefore be invalidated, because there wasn’t substantial competent evidence to support the stop. While this Court agrees with the petitioner that the Department failed to show by substantial, competent evidence that the vehicle was lawfully stopped, the analysis does not end there.

The real issue in this case is whether or not probable cause is required for the stop. As argued by the respondent, for those license suspensions based on stops prior to October 1, 2006, the department does have to show the lawfulness of the stop. Since that date however, the law has changed. The legislature has specifically removed the consideration of the lawfulness of the stop, (by removing the requirement that the hearing officer determine the lawfulness of the arrest) from the scope of review of the hearing officer. Under the present statute, the hearing officer must determine:

1: Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle …while under the influence of alcoholic beverages . . .

2: Whether the person . . . refused to submit to any such test after being requested to do so by a law enforcement officer . . .

3: Whether the person . . . was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year . . .

F.S. 322.2615 (2006).

In this case, the hearing officer found that Deputy Archibald had probable cause to believe that petitioner was operating a motor vehicle based upon Deputy Metzeler’s observations and subsequent ticketing of petitioner. Both the affidavit and the Alcohol/Drug Influence report provide competent substantial evidence from which the hearing officer could determine that there was probable cause to arrest petitioner for DUI. Furthermore, Petitioner admitted to drinking four beers watching the football game, his eyes were red and glassy, he had mumbled speech, the deputy noted the odor of an alcoholic beverage on petitioner, and petitioner performed poorly on the field sobriety tests. Finally, the refusal affidavit established that petitioner was asked to submit to testing and advised of the consequences of refusal . The affidavit also established that after being advised of the consequences of refusal, the petitioner refused to submit to testing. Thus, the hearing officer found all the elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test, supported by a preponderance of the evidence. Accordingly, the petition is denied.

Therefore, it is,

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

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of _____________, 2007.

_______________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

__________________

Daniel D. Diskey

Circuit Judge

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Jack D. Hoogewind, Esq.

Thomas C. Mielke, Esq., DHSMV