Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause – traffic stop – confusion doctrine.  Arresting deputy had probable cause to believe Petitioner was driving a motor vehicle while impaired based on deputy’s observations – Competent substantial evidence supported hearing officer’s determination that Petitioner failed to communicate to an officer his confusion about the interplay of his Miranda rights and implied consent – Hearing officer properly sustained license suspension based on Petitioner’s refusal to submit to a breath test - - Petition denied.  Mastenbroek v. State of Florida Department of Motor Vehicles, No. 09-000014AP-88B (Fla. 6th Cir. App. Ct. April 16, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

PAUL E. MASTENBROEK,

                  Petitioner,                                                          Ref. No.:  09-000014AP-88B

v.                                                                                          UCN: 5220009AP000014XXXXCV

                                                                                   

STATE OF FLORIDA, DEP’T OF

HIGHWAY SAFETY AND

MOTOR VEHICLES,                         

                  Respondent.

______________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner Paul E. Mastenbroek on March 6, 2009.  Respondent, Department of Highway Safety and Motor Vehicles (the "DHSMV"), filed a response, to which Petitioner filed a reply.  Upon consideration, this Court finds that the Petition for Writ of Certiorari must be denied as set forth below.

            On November 8, 2009, Petitioner was stopped twice by deputies of the Pinellas County Sheriff’s Office.  Petitioner was initially stopped by Deputy Patitz for suspicion of driving under the influence (“DUI”) when Petitioner allegedly veered off the roadway and onto the grass in a residential neighborhood. After Deputy Duncan arrived on the scene and determined that Petitioner’s license was suspended, the deputies informed Petitioner of his license suspension.  Deputy Patitz requested Petitioner to take a field sobriety test, which Petitioner refused.  Deputy Patitz determined from his interaction with Petitioner at that time that a citation was adequate to resolve the matter, and he discontinued his DUI investigation.[1]  Deputy Patitz confiscated Petitioner’s license, issued him a citation for driving on a suspended license, and instructed Petitioner to park the car and call a friend to give him a ride.[2]

            Approximately thirty minutes later, Deputy Duncan recognized the Petitioner in his vehicle pulling onto a roadway.  Deputy Duncan stopped the Petitioner and requested him to take field sobriety tests.  Petitioner refused.  According to Deputy Duncan, Petitioner appeared excited; was rocking, swaying, and unstable on his feet; and had a strong odor of alcohol on his breath.  Deputy Duncan took Petitioner into custody for driving on a revoked license and transported him to Central Breath Testing.  Deputy Duncan read Petitioner his Miranda rights, which Petitioner invoked.  Petitioner refused to submit to a breath or blood test.  Duncan testified that Petitioner was subsequently read implied consent and Petitioner again refused to take a breath test.  Petitioner remarked over and over that he was not refusing, but that he just wanted his attorney present.  Another officer and the breath test operator explained to Petitioner why he was not allowed to have a lawyer present at that time, but Petitioner did not submit to the test.  Subsequently the DHSMV suspended Petitioner’s license pursuant to Florida Statutes section 322.2615.

            Petitioner requested administrative review of his license suspension.  A hearing officer conducted an administrative hearing on January 13 and January 29, 2009, and found by a preponderance of the evidence that (1) law enforcement had probable cause to believe that Petitioner was driving a motor vehicle while under the influence of alcohol; (2) Petitioner refused to submit to a breath test after being requested to do so; and (3) 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 for finding that law enforcement had probable cause to arrest him or that he willfully refused to submit to a breath test. 

            In reviewing the Department’s order, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential elements of law have been observed, and (3) whether the administrative findings are supported by competent, substantial evidence.  Vichich v Dep’t of Highway Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001).  It is not the job or function of the circuit court to reweigh evidence and make findings when it undertakes a review of an administrative decision.  Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).  The hearing officer assigned to hear the case by the department is “the trier of fact and in the best position to evaluate the evidence.”  Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995).

            Petitioner first argues that no competent substantial evidence in the record supports a finding that law enforcement had probable cause to believe he was driving a motor vehicle while he was impaired.  More specifically, Plaintiff argues that Deputy Duncan’s detection of the odor of alcohol on him was insufficient to establish probable cause for the arrest. “[T]he presence of an odor of alcohol alone is generally not considered an accurate and reliable measure of impairment and, thus, is rarely deemed sufficient for a finding of probable cause.  Usually, the odor of alcohol must be combined with the other factors.”  State v. Kliphouse, 771 So. 2d 16, 23 (Fla. 4th DCA 2000).  In this instance, however, Deputy Duncan testified to more than the mere odor of alcohol.  He also testified that Petitioner displayed slurred speech, made repetitive statements in an excited state, was unsteady on his feet and rocked and swayed, and refused to perform standard field sobriety tests.  Under Kliphouse, these are the types of “components central to developing probable cause.”  Id. at 23, quoted in Stellar v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 152a (Fla. 6th Cir. Ct. Dec. 10, 2009).  “[P]robable cause exists ‘where the facts and circumstances, as analyzed from the officer’s knowledge . . .  and practical experience . . . are sufficient in themselves for a reasonable man to reach the conclusion that an offense has been committed.’” Dep’t of Highway Safety & Motor Vehicles v. Silva, 806 So. 2d 551, 554 (Fla. 2d DCA 2002) quoting Favino, 667 So. 2d at 308.  From the reasonable inferences drawn from the surrounding circumstances and Deputy Duncan’s observations, competent substantial evidence supports the hearing officer’s finding of probable cause.

            Petitioner also argues that the hearing officer improperly sustained his license suspension based on his refusal to submit to a breath test.  Although Petitioner recognizes that a driver cannot invoke his Miranda[3]rights, he argues that his refusal to submit to a breath test was the result of confusion and should be excused under the “confusion doctrine.”  The “confusion doctrine” refers to the confusion created when a driver is confused about the interplay between Miranda rights and Florida’s implied consent statute, Florida Statutes section 316.1932.[4]  See Ringel v. Dep’t of Highway Safety & Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. Ct. July 30, 2002).  Even if a driver is legitimately confused about the interplay of the Miranda warning and implied consent, the confusion doctrine will not apply unless the driver communicates his or her confusion to an officer.  Lavin v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly 605a (Fla. 6th Cir. Ct. May 15, 2009).  Whether Petitioner made his confusion known is a question of fact to be determined by the hearing officer.  Barrett v. Dep’t of Highway Safety & Motor Vehicles, 11 Fla. L. Weekly Supp. 955a (Fla. 6th Cir. Ct. July 7, 2004).

            Although the record indicates that Petitioner communicated that he wanted to speak with his attorney and that he was not refusing, it does not appear he clearly communicated any confusion regarding his rights under Miranda and implied consent.  Therefore, competent substantial evidence exists to support the hearing officer’s determination that the confusion doctrine did not apply in this case and that Petitioner willfully refused to submit to a breath test.

            Accordingly, it is

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

DONE AND ORDERED in Chambers in St. Petersburg, Pinellas County, Florida, on this ________th day of April 2010.

 

 

 

Original order entered on April 16, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

 

 

 

 

 

 

Copies furnished to:

 

J. KEVIN HAYSLETT, ESQUIRE                              

250 North Belcher Road, Suite 102                            

Clearwater, FL  34625

 

HEATHER ROSE CRAMER, ESQUIRE

ASSISTANT GENERAL COUNSEL

DHSMV - Legal Office

P.O. Box 540609

Lake Worth, FL 33454-0609

Clearwater, FL 33762


        [1]Deputy Duncan observed that Petitioner was repetitive, was unsteady on his feet and leaning against his car, and smelled strongly of chewing tobacco.  However, he testified that he did not view these as obvious impairments that would require a DUI investigation at that time.

        [2]Plaintiff testified that the deputies instructed him to drive the car to a convenient store to call a friend.  This nonmaterial dispute in the testimony is not addressed by the DHSMV’s Order.

        [3]Miranda v. Arizona, 384 U.S. 436 (1966).

        [4]The Florida circuit courts are not in agreement on the use of the doctrine.  For example, see Green v. Dept’ of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 43c (Fla. 4th Cir. Ct. Oct. 9, 2006) (declining to apply the confusion doctrine because “[b]y indicating her desire for an attorney after being requested to submit to a breath test, Petitioner attempted to assert a right which does not exist in the context of a request to submit to a breath test.”).