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Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – accident report privilege – actual physical control – accident report privilege set forth in Florida Statutes, section 316.066(7), has been abrogated by section 322.2615(2) – section 322.2615(2) states that a crash report shall be considered by the hearing officer – probable cause of actual physical control established by officer’s observations at the scene of the single car accident and hospital – driver had watery, bloodshot eyes, his speech was slurred and he smelled of alcohol - Petition denied. Cram v. Dept. of Highway Safety and Motor Vehicles, No. 07-0051AP-88B (Fla. 6th Cir. App. Ct. January 17, 2008).

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

CHARLES CRAM,

Petitioner,

vs. Appeal No. 07-0051AP-88B

UCN522007AP000051XXXXCV

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, Charles Cram (Cram), seeks review of the Findings of Fact, Conclusions of Law and Decision (Order), entered August 17, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained the suspension of Cram’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 Cram 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 June 23, 2007, the petitioner was operating a motor vehicle that was involved in a traffic crash. Trooper Daniel Cole of the Florida Highway Patrol arrived at BayFront (sic) Medical Center and made contact with the petitioner. Trooper Cole smelled a strong odor of an alcoholic beverage on the petitioner’s breath and noticed that his eyes were watery and bloodshot, and that his speech was slurred.

Trooper Cole requested that the petitioner submit to a blood draw to determine the alcohol content of his blood. The petitioner declined the request for a blood draw. Trooper Cole read him implied consent and the petitioner still refused.

The record includes Trooper Cole’s Arrest Narrative which states that he responded to the scene of a single car accident in which a Ford pick-up had overturned after leaving its lane of traffic and hitting two concrete barriers. When Trooper Cole arrived, Cram had been extricated from the Ford and was being placed in Bayflight to be flown to Bayfront Hospital. In speaking with deputies and fire rescue personnel, Trooper Cole learned that Cram had the odor of alcohol on his breath. Upon arriving at Bayfront, Trooper Cole observed several signs of impairment and informed Cram that he would now be conducting a criminal DUI investigation. Cram failed the subsequent HGN test. Trooper Cole requested Cram to take a blood test, to which Cram refused. Trooper Cole issued Cram a citation for DUI refusal and careless driving.

At the formal review hearing, counsel for Cram made three motions to invalidate the license suspension based upon the accident report privilege, that Trooper Cole did not witness actual physical control, and that there was not a valid refusal. The hearing officer denied each motion and sustained Cram’s license suspension for refusing to submit to a blood test.

Before this Court, Cram argues that the Department erred in not setting aside his license suspension as the hearing officer improperly relied on privileged information set forth in the Accident Report and that there was no evidence of actual physical control. 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 Cram was in actual physical control of a motor vehicle while under the influence, that Cram refused to submit to a breath, blood, or urine test, and that Cram 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 Cram’s arrest. See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).

In addressing the first issue, recent statutory changes to Florida Statutes, section 322.2615, have abrogated the accident privilege set forth in section 316.066(7).[1] Effective October 1, 2006, section 322.2615(2) states: “Notwithstanding s. 316.066(7), the crash report shall be considered by the hearing officer.” Thus, the accident privilege found in section 316.066(7) is no longer applicable in administrative license suspension hearings. See e.g. McLaughlin v. Department of Highway Safety and Motor Vehicles, 14 Fla. L. Weekly Supp. 1084 (Fla. 10th Cir. App. Ct. Sept. 18, 2007).[2] Even assuming, arguendo, that section 316.066(7) was applicable, Trooper Cole’s observations of Cram’s physical appearance and behavior are not barred by the accident report privilege. See State v. Cino, 931 So.2d 164, 167 (Fla. 5th DCA 2006).

Cram next argues that the record fails to show probable cause that Cram was in actual physical control of a motor vehicle while under the influence of alcohol. Probable cause exists, “where the facts and circumstances, as analyzed from the officer’s knowledge, special training and practical experience, and of which he has reasonable trustworthy information, are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.” See Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997); see also Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305, 309 (Fla. 1st DCA 1995)(same). The Arrest Narrative completed by Trooper Cole states that when he arrived at the scene of the single-vehicle accident Cram was “being placed in Bayflight to be flown to Bayfront Hospital.” Trooper Cole observed the accident scene, including that Cram had to be extricated from his vehicle. At the hospital, Trooper Cole observed the Cram’s eyes were watery and bloodshot, his speech was slurred, and that Cram smelled of alcohol. The Court finds that the these facts and circumstances, taken together, support the hearing officer’s finding of probable cause.

Lastly, Cram raises a number of issues in his Reply Brief, including whether the HGN test was properly administered and whether the odor of alcohol was sufficient evidence to show impairment, that were either not preserved for appeal and/or not presented in the Initial Brief. Cram is procedurally barred from raising such new claims. See Hall v. State, 823 So.2d 757, 763 (Fla. 2002); see also Medrano v. State, 795 So.2d 1009, 1010 (Fla. 4th DCA 2001).

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 January 2008.

______________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_____________________________ _____________________________

PETER RAMSBERGER AMY M. WILLIAMS

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

J. Kevin Hayslett, Esquire

250 North Belcher Road, Suite 102

Clearwater, FL 34625

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] 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.”

[2] The Court notes that the case cited by the Department in its Response, Lycans v. DHSMV, 14 Fla. L. Weekly Supp. 533 (Fla. 6th Cir. App. Ct. April 23, 2007), does not address the accident report privilege. Rather, that decision holds that the Department no longer needs to show that the traffic stop was lawful in an administrative hearing and is inapplicable to the facts presented in this case.