Petition
for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway
Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Reliable, competent, substantial
evidence supported Hearing Officer's finding that Petitioner was under arrest
at the time the request to submit to breath-alcohol test was made and that
Petitioner was informed of the consequences of the refusal to submit to breath
test. Petition denied. Szurant
v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000006AP-88A
(Fla. 6th Cir. App. Ct. August 31, 2011).
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
JOLANTA SZURANT,
Petitioner, Case No. 11-000006AP-88A
UCN522011AP000006XXXXCV
v.
STATE OF FLORIDA, DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR
VEHICLES, DIVISION OF DRIVER
LICENSES,
Respondent.
______________________________________/
Opinion Filed ______________
Petition for
Writ of Certiorari from
Decision of Hearing
Officer
Bureau of
Administrative Reviews
Department of
Highway Safety
and Motor Vehicles
Ricardo
Rivera, Esq.
Attorney for
Petitioner
Stephen D.
Hurm, Gen. Counsel
Heather Rose
Cramer, Asst. Gen. Counsel
Attorneys for
Respondent
PER
CURIAM.
Jolanta Szurant seeks certiorari
review of the "Findings of Fact, Conclusions of Law and Decision" of the
Hearing Officer of the Bureau of Administrative Reviews, Department of Highway
Safety and Motor Vehicles, entered on January 3, 2011. The Decision affirmed the administrative suspension
of Ms. Szurant's driving privileges. The
petition for writ of certiorari is denied.
Statement
of Case
On November 1, 2011, Ms. Szurant was
driving on a public road in Pinellas County when an officer of the Clearwater
Police Department stopped her vehicle for suspected driving under the influence
(DUI). Ms. Szurant was transported to
the Clearwater Police Department where she refused to submit to a breath test to
determine the content of alcohol in her blood.
Due to her refusal, her driver's license was administratively suspended.
On December 30, 2010, an
administrative formal review hearing was conducted pursuant to section 322.2615,
Florida Statutes (2010). At the hearing,
counsel for Ms. Szurant argued that the driver's license suspension should be
invalidated because allegedly there is a "hopeless conflict" in the
evidence relating to the timing of events surrounding Ms. Szurant's arrest and
refusal to submit to the breath test. No
witnesses were presented by Ms. Szurant or by the Department of Highway Safety
and Motor Vehicles (Department). Only
documentary evidence was submitted in support of the suspension of Ms.
Szurant's driver's license.
On January 3, 2011, the Hearing
Officer entered the "Findings of Fact, Conclusions of Law and Decision."
Ms. Szurant's motion to invalidate the
suspension was denied. The Hearing
Officer concluded that all elements necessary to sustain the suspension of Ms.
Szurant's driving privileges were supported by a preponderance of the evidence
and the order of suspension was affirmed.
This petition followed.
Standard of Review
Circuit court certiorari review of an
administrative agency decision is governed by a three-part standard: (1)
whether procedural due process is accorded; (2) whether the essential
requirements of law have been observed; and (3) whether the administrative
findings and judgment are supported by competent, substantial evidence. See Haines City Cmty.
Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). This Court is not to reweigh the evidence or
substitute its judgment for that of the Hearing Officer. Id.
Evidence
Submitted at Hearing
The following evidence was submitted
to the Hearing Officer at the formal review hearing and has been supplied to
this Court in support of Ms. Szurant's Petition:
1. The "Florida DUI Uniform Traffic
Citation" (DDL 1) signed by Clearwater Police Sergeant Kinchen states:
IN
THE COURT DESIGNATED BELOW THE UNDERSIGNED CERTIFIES THAT HE/SHE HAS JUST AND
REASONABLE GROUNDS TO BELIEVE AND DOES BELIEVE THAT ON
MON 11 1 2010 1:38
A.M.
JOLANTA
SZURANT . . . .DID UNLAWFULLY COMMIT THE OFFENSE OF
DRIVING UNDER THE INFLUENCE OF ALCOHOLIC BEVERAGES, CHEMICAL OR CONTROLLED SUBSTANCES;
DID DRIVE, OR WAS IN ACTUAL PHYSICAL CONTROL OF A VEHICLE WHILE UNDER THE
INFLUENCE OF AN ALCOHOLIC BEVERAGE/CHEMICAL SUBSTANCE/CONTROLLED SUBSTANCE TO
THE EXTENT NORMAL FACULTIES WERE IMPAIRED, OR WITH A BLOOD OR BREATH ALCOHOL
LEVEL OF .08 OR ABOVE OF _____________.
(Emphasis
added). The signature line on the
Citation merely has the notation PCJ [Pinellas County Jail]. The citation continues, "EFFECTIVE
IMMEDIATELY, YOUR DRIVING PRIVILEGE IS SUSPENDED/DISQUALIFIED FOR:
X REFUSAL TO SUBMIT TO LAWFUL BREATH, BLOOD
OR URINE TEST F.S. 322.2615. THIS
SUSPENSION IS FOR A PERIOD OF ONE YEAR IF THIS IS A FIRST REFUSAL OR 18 MONTHS
IF PREVIOUSLY SUSPENDED FOR THIS OFFENSE. . . .
2.
The "Complaint/Arrest Affidavit" (DDL 3) signed by Sgt.
Kinchen states:
The
undersigned swears that he has reasonable grounds to believe that [Ms. Szurant]
on the 1 day of NOVEMBER, 2010, at
approximately 1:12 AM at 300 BLOCK OF S. GULFVIEW BLVD, in Pinellas County
did:
Reason
for stop: Szurant was paced at 45 mph in
a 25 mph zone and failed to maintain a single lane
Then
and there unlawfully drive and/or be in actual physical control of a motor
vehicle within pinellas county, florida while under the influence of alcoholic
beverage, a controlled substance and/or any chemical substance to the extent
that her normal faculties were impaired.
BRAC: refused Breath:
strong odor
Balance:
poor Eyes: blood shot, watery
Prior
Convictions: 04/21/07
Defendant
failed field sobriety tests.
.
. . .
SZURANT
WAS OPERATING A 2004 NISSAN SPORT UTILITY VEHICLE . . . NORTH BOUND ON MANDALAY
AVE AT 45 MPH IN A 25 MPH ZONE. SHE
FAILED TO MAINTAIN A SINGLE LANE AND DROVE NORTH BOUND IN THE SOUTH BOUND
LANES.
.
. . .
ARREST DATE 11/1/2010 Time
1:26 AM
(Emphasis
added).
3. The "Affidavit of Refusal to Submit to
Breath, Urine, or Blood Test" (DDL 4) signed by Sgt. Kinchen states that
on November 1, 2010 at 1:28 a.m.,
Ms. Szurant was placed under arrest for DUI.
"That on
or about the 1 day of November, 2010, at 0130 A.M." Sgt. Kinchen requested that Ms. Szurant
submit to a breath test to determine the content of alcohol in her blood and
she was informed that any refusal to submit to testing would result in her
license being suspended. Ms. Szurant
refused to submit to the breath test. (Emphasis added).
4. The "Clearwater Police Department ACISS
CW—Offense Report" (DDL 6) prepared by Clearwater Police Officer Williams states:
Occurrence
from: 11/01/2010 01:00
Occurrence
to: 11/01/2010 01:12
Source
of Call: ON VIEW
The report by Off. Williams indicates that the backup officer,
Sgt. Kinchen arrived at the scene at 01:12 a.m.
The report details the stop of the vehicle and that Sgt. Kinchen was in
charge of the DUI investigation. Ms.
Szurant was unable to complete the field sobriety tests. The report continues:
I
took her into custody for further investigation on the charge of DUI. . . . I then
transported Szurant to CPD main [Clearwater Police Headquarters] to meet with
Ofc Faulk for a Breath Test.
While
en route to CPD Main, Szurant vomited in my vehicle. Once at CPD Main I had Szurant step out of my
vehicle and placed her in a holding cell.
I then began the 20 min observation period.
Ofc
Faulk arrived and I explained to him what I had so far, ref his supplement. At 0154
hours Szurant refused to submit to a breath test. . . .
Decision
by Hearing Officer
The "Findings of Fact,
Conclusions of Law and Decision" of the Hearing Officer
states:
I
find that the following facts are supported by a preponderance of the evidence:
On
November 1, 2010 [Ms. Szurant] was stopped for crossing over the double yellow
lines several times. [Ms. Szurant]
exhibited obvious signs of impairment and performed poorly on field sobriety
evaluations. She also admitted to having
consumed one merlot. She was placed
under lawful arrest for DUI at 1:28 a.m. November 1, 2010 and was transported
to the Clearwater Police Department for further testing. At 1:30 a.m. November 1, 2010 she was read
and explained Implied Consent Warnings.
At 1:54 a.m. November 1, 2010 [Ms. Szurant] refused to submit to a
lawful breath test.
The
Hearing Officer denied the motion to invalidate the suspension and concluded as
a matter of law that the officer had probable cause to believe Ms. Szurant was
driving under the influence; that subsequent to a lawful arrest Ms. Szurant
refused to submit to a breath test after being requested to do so by a law
enforcement officer; and Ms. Szurant was informed that if she refused to submit
to a breath test her driving privileges would be suspended. The Hearing Officer found that all elements
necessary to sustain the driver's license suspension were supported by a
preponderance of the evidence and the suspension was affirmed.
Analysis
The evidence in the record demonstrates
the following timeline. All events were
alleged to have occurred in the early morning hours of November 1, 2010:
01:00 a.m. Ms. Szurant observed driving erratically by Off. Williams. (DDL 6).
01:12 a.m. Ms. Szurant stopped by Off. Williams and backup
officer Sgt. Kinchen. (DDL 3, 6).
01:26 a.m. Ms. Szurant arrested. (DDL 3).
01:28 a.m. Ms. Szurant arrested. (DDL 4).
01:30 a.m. Ms. Szurant was given Implied Consent Warning by Sgt. Kinchen and
she was asked to submit to a breath test. Ms. Szurant refused to take the breath test. (DDL 4).
01:38 a.m. Citation issued that states Ms. Szurant committed DUI and her
license was suspended for refusal to submit to a breath test. (DDL 1)
01:54 a.m. Ms. Szurant refused to take breath test. (DDL 6).
In order for the suspension of a
driver's license to be valid under the statute at issue, the law requires that a
defendant must have been under arrest at the time the request to submit to the
breath test was made and that the defendant be informed of the consequences of
the refusal to submit to the test. See
§§ 316.1932(1)(a); 322.2615, Fla. Stat. (2010); Fla. Dep't of Highway Safety
& Motor Vehicles v. Hernandez, 36 Fla. L. Weekly S243 (Fla. June 9, 2011)(not
yet final, motion for rehearing/clarification pending)(approving holding that driver's
license "suspension can be predicated upon a refusal to take a breath
test, but only if the refusal is incident to a lawful arrest")(quashing McLaughlin
v. Dep't of Highway Safety & Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA
2008)).
In the petition, Ms. Szurant argues
that the documentary evidence at the administrative hearing was in conflict as
to whether the refusal to submit to the breath test was made before or after
her arrest. It is asserted that without
live-sworn testimony to resolve the conflict, there was a lack of competent,
substantial evidence to sustain the suspension of her license.
To support her argument, Ms. Szurant
notes that all the documents in evidence do not indicate that Ms. Szurant was
read the Implied Consent Warning. She
also directs the Court to the Citation (DDL 1) that states Ms. Szurant committed
the DUI offense at 1:38 a.m. The time
listed in the Citation allegedly is inconsistent with the other reports in the
record which indicate that Ms. Szurant was arrested at 1:26 a.m. (DDL 3) or
1:28 a.m. (DDL 4); that she was read the Implied Consent Warning and refused at
1:30 a.m. (DDL 4); and also that she refused to take the breath test at 1:54
a.m. (DDL 6). Ms. Szurant cites to Department
of Highway Safety and Motor Vehicles v. Trimble, 821 So.
2d 1084 (Fla. 1st DCA 2002), to support her argument that due to the
inconsistencies in the evidence, the Hearing Officer's affirmance of the
suspension of her driver's license should be quashed. See also Ojiem v. Dep't of Highway
Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 535a (Fla. 6th Cir. App.
Ct. March 26, 2008); Cellamare v. Dep't of Highway Safety & Motor
Vehicles, 14 Fla. L. Weekly Supp. 908a (Fla. 6th Cir. App. Ct. April 13,
2007).
In Trimble, the circuit court
acting in its appellate capacity found that competent, substantial evidence did
not support the Hearing Officer's determination that inconsistencies between
the timing of events in the various documents submitted by the Department were
the result of "clerical errors." In affirming the circuit appellate court, the First
District Court of Appeal concluded that the circuit court had not impermissibly
reweighed the evidence when it granted Trimble's petition for writ of certiorari.
The issue in Trimble was
whether Trimble was given the Implied Consent Warning prior to her refusal to
submit to the breath/blood/urine test. In
that case, clearly the evidence was in conflict. The "Affidavit of Refusal to Submit to
Breath, Urine or Blood Test" recited that Trimble was arrested on the evening
of September 27, 2000, at 11:40 p.m. The
same document recounted that the warning, request to submit to the breath test,
and refusal to submit were made on the early morning hours of September 27,
2000, at 12:45 a.m. The printout from
the Breathalyzer machine reflected that Trimble's refusal occurred on September
27, 2000, at 12:47 a.m. But,
contradicting the statements in both documents was the arresting officer's
narrative report indicating that the Implied Consent Warning was given on
September 27, 2000, at 12:50 a.m.
The First District Court of Appeal in Trimble
quoted De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), when
discussing the definition of competent, substantial evidence:
Substantial
evidence has been described as such evidence as will establish a substantial
basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence
as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective “competent” to
modify the word “substantial,” we are aware of the familiar rule that in
administrative proceedings the formalities in the introduction of testimony
common to the courts of justice are not strictly employed. We are of the view, however, that the evidence
relied upon to sustain the ultimate finding should be sufficiently relevant and
material that a reasonable mind would accept it as adequate to support the
conclusion reached. To this extent the
“substantial” evidence should also be “competent.”
Trimble, 821 So. 2d at 1086-87. The opinion notes that two years later the
Florida Supreme Court further refined the definition when it stated, "Although
the terms 'substantial evidence' or 'competent substantial evidence' have been
variously defined, past judicial interpretation indicates that an order which
bases an essential finding or conclusion solely on unreliable evidence should
be held insufficient." Id. at 1087 (quoting Fla. Rate Conference v. Fla. R.R. &
Pub. Util. Comm'n, 108 So. 2d 601, 607
(Fla. 1959)). The First District
Court of Appeal concluded, "The hearing officer's finding that Trimble was
given a consent warning before her refusal could have rested as much on a flip
of a coin as on the documentary evidence submitted." Id. at 1087. The circuit appellate court's decision to set
aside the suspension of Trimble's driver's license was affirmed by the First
District Court of Appeal when it denied the second-tier certiorari petition.
Conclusion
Ms. Szurant points out that the
"Florida DUI Uniform Traffic Citation" (DDL 1) states that at 1:38
a.m. she committed the DUI offense; however, she does not comment on the fact
that this same Citation also documents that her license immediately was
suspended for refusal to submit to the breath test at that time. The Citation documents that Ms. Szurant had
committed the DUI and also that she had refused to submit to the breath test by
1:38 a.m. This evidence does not
contradict the statements in the "Complaint/Arrest Affidavit" and the
"Affidavit of Refusal to Submit to Breath, Urine, or Blood Test" that
Ms. Szurant was arrested at 1:26 a.m. or 1:28 a.m., (DDL 3, 4) and given the
Implied Consent Warning at 1:30 a.m., before her refusal to take the breath
test. (DDL 4).
In reviewing all the evidence of
record as detailed above, this Court concludes that reliable, competent,
substantial evidence supports the Hearing Officer's decision that all elements
necessary to sustain the suspension of Ms. Szurant's driving privileges,
including the requirement that Ms. Szurant be under arrest at the time she was
given the Implied Consent Warnings and refused to submit to the test. The evidence in the record is such that
"a reasonable mind would accept [it] as adequate" to support the
suspension of Ms. Szurant's driver's license.
See De Groot, 95 So. 2d at 916; see also Florida
Rate Conference, 108 So. 2d at 607; Leverence v. Dep't of Highway Safety
& Motor Vehicles, 17 Fla. L. Weekly Supp. 313a (Fla. 7th Cir. App. Ct.
Nov. 3, 2009). The petition is denied.
Petition for Writ of Certiorari Denied.
DONE
AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 31st day
of August, 2011.
Original order entered on August 31,
2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.
Copies
furnished to:
Ricardo
Rivera, Esq.
250 North
Belcher Rd., Suite 102
Clearwater,
FL 33765
Stephen D.
Hurm, Gen. Counsel
Heather Rose
Cramer, Asst. Gen. Counsel
Dep't of Hwy.
Safety & Motor Vehicles
P.O. Box 540609
Lake Worth,
FL 33454