Petition for Writ of Certiorari to Review Quasi-Judicial Action,
Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – the petitioner
was afforded procedural due process, the essential
requirements of the law were observed, and the hearing officer’s findings and
judgment were supported by competent substantial evidence. Accordingly, petition denied. Thomas v. DHSMV,
No. 08-0008AP-88B (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
MICHAEL H. THOMAS APPEAL No.: 08-00008AP-88B
Petitioner, UCN522008AP000012XXXXCV
v.
STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES,
Respondent.
_____________________________________/
ORDER DENYING
PETITION FOR WRIT OF CERTIORARI
THIS
CAUSE came before the Court on Petitioner, Michael H. Thomas’ Petition for
Writ of Certiorari. Respondent, “DHSMV” filed their response on April 30, 2008
and Petitioner replied on May 20, 2008. Upon consideration, this Court finds
that the Petition for Writ of Certiorari must be denied
as set forth below.
The standard of review is whether the petitioner 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
(
This appeal stems from the
suspension of Petitioner’s driver license after his arrest for driving under
the influence on January 9, 2008. Thomas
contends that the DHSMV departed from essential requirements of law by entering
its final order. The Findings of Fact,
Conclusions of Law dated February 19, 2008 was based
on an administrative hearing held on February 13, 2008. The
issues presented at the administrative hearing included 1) whether the law
enforcement officer had probable cause to believe that Petitioner was driving
or in actual physical control of a motor vehicle while under the influence; 2)
whether Petitioner refused to submit to a urine test or a breath test or a
blood test after being requested to do so; and 3) whether Petitioner was told
that if he refused to submit to such test his privilege to operate a motor
vehicle would be suspended for a year or in the case of a subsequent refusal,
for a period of eighteen months.
The Field Officer found that on
January 9, 2008, Thomas was operating a motor vehicle and that Officer Weiskopf
arrived and made contact with Thomas and noticed his
eyes were glassy, watery and bloodshot, his speech was slurred and
thick-tongued and he was unsteady on his feet. Officer Weiskopf asked
petitioner to perform a Field Sobriety test, which Thomas performed poorly. Thomas
was then arrested and transported to jail, wherein he refused
to submit to a urine test.
Thomas argued on the administrative level and
in his Petition there is a hopeless conflict in the
evidence, specifically that Officer Collins was the only Officer to see the
vehicle in motion and identify the driver as someone other than Thomas. Officer
Collins, however, turned over the DUI investigation to responding officers,
including Officer Weiskopf who found there was probable cause to believe that
Thomas was driving or in actual physical control of a motor vehicle while under
the influence.
Second, Thomas argues that DHSMV
improperly considered unsworn reports that should not have
been admitted into evidence or considered by the hearing officer, specifically
DDL #7, #8 and #9, as these documents were not included in the law enforcement
officer’s oath form. This objection was made at the
administrative hearing by Petitioner’s counsel and considered by the hearing
officer.
The determination for this Court is whether Thomas was afforded procedural due process, whether the essential
requirements of law were observed, and whether the Department’s findings and
judgment was supported by competent substantial evidence. The Court finds that
Thomas was afforded procedural due process and the
DHSMV observed the essential requirements of law. More importantly, this Court holds the
hearing officer’s findings of fact and conclusions of law
dated February 19, 2008 was supported by competent substantial evidence.
Therefore, it is,
ORDERED AND ADJUDGED that the
Petition for Writ of Certiorari is hereby DENIED.
DONE AND ORDERED in Chambers, at
_________________________________
AMY M. WILLIAMS
Circuit Judge, Appellate Division
_______________________________ ______________________________
PETER
RAMSBERGER J.
THOMAS MCGRADY
Circuit Judge, Appellate Division Circuit Judge,
Appellate Division
Copies furnished to:
Ricardo Rivera, Esq.,
State of
Bureau of Administrative Reviews,
Thomas C. Mielke, DHSMV,