Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – implied consent – breath test – request for a "breath, urine, or blood test" does not render an implied consent warning invalid where there is nothing in the record demonstrating that law enforcement may have mislead petitioner into thinking a more invasive test was required – here, hearing officer had competent, substantial evidence to support license suspension and adhered to requirements of law – Petition denied. Romine v. Department of Highway Safety & Motor Vehicles, Appeal No. 08-0043AP-88A (Fla. 6^th Cir. Ct. App. Div. Dec. 18, 2009).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND,

IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

ROBERT ROMINE,

Petitioner, UCN: 522008AP0000043XXXXCV

REF NO.: 08-000043AP-88A

vs.

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 a Petition for Writ of Certiorari, originally filed

on December 8, 2008 by Petitioner, Robert Romine. Respondent, Department of Highway Safety and Motor Vehicles (the "Department"), filed their response on February 19, 2009. Upon

consideration, this Court finds that the Petition for Writ of Certiorari must be denied as set forth below.

STANDARD OF REVIEW

The standard of review is whether the Department's actions accorded procedural due

process, observed the essential requirements of law, and were supported by competent

substantial evidence. Vichich v. Department of Highway Safety and Motor Vehicles, 799 So.2d

1069, 1073 (Fla. 2d DCA 2001).

BACKGROUND

This appeal proceeds from the suspension of Petitioner's drivers license after his arrest

for driving under the influence on August 23, 2008. On August 23, 2008, Officer Milne pulled over Petitioner after observing him weaving in and out of his traffic lane. At the traffic stop, Officer Milne detected an odor of alcohol on Petitioners breath, observed that the Petitioners eyes were watery and glossy, and that Petitioner was slurring his speech and swaying. Officer Milne arrested Petitioner for driving under the influence and requested that he submit to a breath test. Petitioner refused. Officer Milne then read Petitioner the implied consent form informing him that refusal to submit to a breath, urine, or blood test his driver's license would result in a suspension of his license. Petitioner again refused.

Petitioner challenged the suspension of his driver's license through the administrative process conducted by the Department. After two administrative hearings, the hearing officer affirmed the suspension on November 17, 2008 and found that: 1) Officer Milne had probable cause to believe that Petitioner was driving or in actual physical control of a motor vehicle while under the influence of alcohol; 2) Petitioner refused to submit to any such test [breath, urine, or blood] after being requested to do so; and 3) that Petitioner was told that his refusal would result in a suspension of his driver's license for a period of one year or, in the case of a second refusal, for a period of eighteen months. Petitioner contends that the administrative hearing officer lacked competent substantial evidence and departed from the essential requirements of law.

FINDINGS

The hearing officer's findings were based on competent substantial evidence. It is the hearing officer's responsibility as trier of fact to weigh the record evidence, assess the credibility of the witnesses, resolve any conflicts in the evidence, and make findings of fact. Department of Highway Safety and Motor Vehicles v. Dean, 662 So.2d 371, 373 (Fla. 5th DCA 1995). As

enumerated by the standard of review, this Court's appellate jurisdiction is not to complete a de novo review. The hearing officer heard Officer Milne testify, under oath, that he first asked Petitioner to take the breath test to which Petitioner refused. After this first refusal, Officer Milne testified that he then read him a copy of the implied consent warning which says "I'm now requesting you to submit to a breath, blood, or urine test ..." to which the Petitioner maintained his refusal. Further, the hearing officer received the Refusal Affidavit which was admitted into evidence and made part of the record which states "...I did request said person to submit to a breath, urine, or blood test to determine the content of alcohol in his or her blood or the presence of chemical or controlled substances therein."

The Department's subsequent suspension of Petitioner's license adhered to the essential requirements of the law. Petitioner relies on Department of Highway Safety and Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007), and its progeny to assert that Officer Milne by reading the implied consent which included more invasive tests, attempted to compel more invasive testing than statutorily authorized and therefore precludes a license suspension based on Petitioner's resulting refusal. However, the implied consent form evaluated in Clark, according to the circuit court below, "clearly state[d] that the license suspension [was] for refusal to take a breath and urine and blood test even though there was only grounds in this case to ask for a breath test." Clark v. Department of Highway Safety and Motor Vehicles, 14 Fla. L. Weekly

Supp. 429a (Fla. 17th Cir. Ct. 2006) (original emphasis). In the case at hand, the implied consent

used the word "or" vice "and" as evaluated in Clark; therefore this case is distinguishable.

The thirteenth judicial circuit has held that a request for a "breath, urine, or blood test"

does not render an implied consent warning invalid where there is nothing in the record

demonstrating that law enforcement may have mislead petitioner into thinking a more invasive

test was required. King v. Department of Highway Safety and Motor Vehicles, Case No.:08-CA-11804 (Fla. 13th Cir. Ct. 2008). Further, the Second District Court of Appeals has more recently

held that the 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 option of taking a "breath test, a

blood test, or a urine test." Department of Highway Safety and Motor Vehicles v. Nader, 4 So.3d

705, 706 (Fla. 2d DCA 2009) (emphasis supplied).

This Court finds that Petitioner was accorded procedural due process, that the Department's actions observed the essential requirements of the law, and that the hearing officer's findings of fact and conclusions of law were supported by competent substantial evidence.

Therefore, it is,

ORDERED AND ADJUGED that the Petition for Writ of Certiorari is hereby DENIED

on the merits.

DONE and ORDERED in Chambers in Clearwater, Pinellas County, Florida on this the ___ day of December, 2009.

Original order entered on December 11, 2009 by Circuit Judges Pamela A.M. Campbell, John A. Schaefer, and George W. Greer.