Petition for Writ of Certiorari to Review Quasi-Judicial Action:  Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES -Department may validly suspend a driver's license for a driver's refusal to submit to a breath-alcohol test when a law enforcement officer offers the driver the option of taking a breath test, a blood test, or a urine test- record in this case clearly demonstrates that the officer had probable cause to believe that the Petitioner was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages-.the  plain language of section 322.2615 limits the hearing officer’s scope of review to the three issues enumerated in the statute.  Petition of writ of certiorari denied. Notorleva v State DHSMV., No. 51-2008-CA-4682-WS/P (Fla. 6th Cir.App.Ct. May 11, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

KURT NOTORLEVA,

 

        Petitioner,

 

v.                                     Circuit Civil No.  51-2008-CA-4682-WS/P

                                        UCN:  512008CA004682XXXXWS

                                        

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES, DIVISION OF DRIVER

LICENSES,

 

        Respondent.

_________________________________/

 

 

ORDER

 

          This matter came before the court upon the Petitioner’s Petition for Writ of Certiorari.  The court has considered the Petition for Writ of Certiorari, the Respondent’s Response thereto and the Petitioner’s Reply.  Based on the foregoing, it is

 

        ORDERED as follows:

 

        1.     Taking the Petitioner’s points in reverse order, the court first considers the Petitioner’s second point.  While this case has been pending, the Second District Court of Appeal has decided Department of Highway Safety and Motor Vehicles v. Nader, 4 So.3d 705, 34 (Fla. 2d DCA 2009).  Nader expressly disagrees with State, Department of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007), upon which Petitioner relies.  Clearly, until the Florida Supreme Court addresses the issue, Nader is controlling on this court.  Nader compels this court to DENY the Petition for Writ of Certiorari as to point II.

 

        2.     As to point I, the fact that the hearing officer found contrary to the Petitioner’s testimony does not mean that the hearing officer did not consider the Petitioner’s testimony.  Such a finding only means that the hearing officer did not find the Petitioner’s testimony to be credible.  As to factual matters, this court’s job is to determine if the hearing officer’s decision was supported by competent substantial evidence.  City of Jacksonville Beach v. Car Spa, Inc., 772 So.2d (Fla. 1st DCA 2000).  The fact that there may also be evidence to support the Petitioner’s contentions does not affect this court’s task.  Furthermore, the Petitioner’s position that the Petitioner must have been under arrest prior to the request for a breath test has been undercut by McLaughlin v. Department of Highway Safety and Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008).  In McLaughlin, the court stated that “[t]he plain language of section 322.2615 limits the hearing officer’s scope of review to the three issues enumerated in the statue”.  The three issues are specified in section 322.2615(7)(b) as follows:

 

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

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 in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

3. Whether the person whose license was suspended 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 or, in the case of a second or subsequent refusal, for a period of 18 months.

 

        The plain language of the statute does not include an inquiry into anything touching upon the arrest of the Petitioner.  The record in this case clearly demonstrates that the officer had probable cause to believe that the Petitioner was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages.  It is also clear that the Petitioner refused to submit to a breath test and that he was advised of penalty for such a refusal.  Any further considerations were beyond the statutory scope of the hearing officer’s inquiry.  For these reasons, we DENY the Petition for Certiorari as to point I.

       

        DONE AND ORDERED in chambers in New Port Richey, Pasco County, Florida this ___ day of May, 2009.

 

 

                                                                __________________

                                                                Stanley R. Mills

Primary Appellate Judge

 

                                                                __________________

                                                                W. Lowell Bray, Jr.

                                                                Appellate Judge

 

                                                                __________________

                                                                Daniel Diskey

                                                                Appellate Judge

                                                               

 

 

Copies furnished to:

Michael L. Mastrogiovanni, Esq.

Jason Helfant, Esq.

        Assistant General Counsel