Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Times on the citations indicating time of issuance did not create discrepancies in the record requiring the clarification of live testimony. Documentary evidence was not in “hopeless conflict.” Record provided competent substantial evidence to establish that the arrest occurred prior to the breath alcohol tests, i.e., that the breath tests were incidental to a lawful arrest. Petition denied. Rysdon v. Department of Highway Safety and Motor Vehicles, No. 11-000007AP-88B (Fla. 6th Cir. App. August 11, 2011).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
RICHARD RYSDON,
Petitioner,
v. Ref. No.: 11-000007AP-88B
UCN: 522011AP000007XXXXCV
DEPARTMENT OF
HIGHWAY
SAFETY AND MOTOR
VEHICLES,
Respondent.
__________________________________/
THIS CAUSE is before the Court on
the Petition for Writ of Certiorari filed by Petitioner Richard Rysdon on February
16, 2011. Respondent Department of Highway Safety
and Motor Vehicles filed a response in opposition. For the reasons set forth below, this Court
denies the Petition for Writ of Certiorari.
On December 12, 2010, Deputy Tommy Rassier conducted a traffic stop on the Petitioner and observed the odor of alcohol on Petitioner, Petitioner’s eyes were bloodshot and watery, and Petitioner was unsteady on his feet and performed poorly field sobriety tasks. The deputy arrested Petitioner for driving under the influence in violation of Florida Statutes § 316.193 and transported Petitioner to CBT. There, Deputy Wiltse conducted the breath-alcohol tests, and Petitioner’s breath alcohol results were 0.130 g/210L and 0.129 g/210L. The DHSMV suspended Petitioner’s driver’s license.
Petitioner challenged the suspension, and an administrative hearing was conducted on January 19, 2011. Petitioner’s attorney appeared on his behalf. No witnesses testified, so the hearing officer considered only the documentary evidence in the record. Petitioner’s attorney moved to invalidate the license suspension based a conflict in the record concerning the time of the arrest and the time of the breath samples. The hearing officer denied the motion and sustained Petitioner’s driver’s license suspension based on findings that the law enforcement officer had probable cause to believe that Petitioner 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 and that Petitioner had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher. Petitioner brings the instant Petition for Writ of Certiorari challenging the hearing officer’s findings and decision.
In reviewing the administrative decision, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been met and (3) whether the administrative hearing officer’s 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). 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). On review, the Circuit Court is not entitled to reweigh the evidence; it may only determine whether competent substantial evidence supports the hearing officer’s findings. Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006) (emphasis added). If the circuit court reweighs the evidence, it has applied an improper standard of review, which “is tantamount to departing from the essential requirements of law[.]” Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 845 (Fla. 2001), quoted in Stenmark, 941 So. 2d at 1249.
The implied consent statute requires the chemical or physical breath test to be “incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages.” § 316.1932(1)(a)1.a. Fla. Stat. (2010). Petitioner argues the documentary evidence fails to establish a proper chronology for Petitioner to have been first arrested, been observed for twenty minutes, and then provided a valid breath sample. According to Petitioner, the documents are in “hopeless conflict” because some documents indicate that the breath test was administered prior to the DUI arrest. Specifically, the probable cause affidavit lists the time of the DUI offense as 4:14 p.m., almost two hours before the DUI citation indicates that the offense occurred. Petitioner argues that, because there was no sworn testimony to resolve these conflicts, the DHSMV’s final order is not supported by competent substantial evidence.
Petitioner relies on Department of Highway Safety and Motor Vehicles v. Trimble, 821 So. 2d 1084 (Fla. 1st DCA 2002). In Trimble, the documentary evidence showed that the DUI arrest occurred at 11:40 p.m. on September 27, 2000; at 12:45 a.m. on September 27, 2000, a request was made for the breath test; the breathalyzer printout reflects refusal at 12:47 a.m.; and the officer’s narrative stated that the consent warning was given at 12:50 a.m. Id. at 1086. The court held that competent substantial evidence did not support the hearing officer’s findings because the dates and times on the documents were “hopelessly in conflict” and did not establish that the officer read the implied consent warning before Trimble’s refusal to submit to a breath test. Id. “The hearing officer's finding that Trimble was given a consent warning before her refusal could have rested as much on the flip of a coin as on the documentary evidence submitted.” Id. at 1087; see also Cellamare v. Dep’t of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 908a (Fla. 6th Cir. Ct. App. Apr. 13, 2007).
The Petitioner argues that the citations issued to him likewise contained time inconsistencies that render his license suspension invalid. The Probable Cause Arrest Affidavit and the DUI Offense Report state that the arrest occurred at 4:55 p.m. The Breath Alcohol Test Affidavit indicates that the Petitioner submitted to breath tests at 17:45 (5:45 p.m.) and 17:48 (5:48 p.m.). The DUI Citation indicated a time of 6:31 p.m.,[1] and the companion Traffic Citations indicated a time of 6:25 p.m.
These times appear to reflect the time that the citations were issued and do not create discrepancies in the record requiring the clarification of live testimony. See Breakell v. Dep’t of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 445a (Fla. 9th Cir. App. Ct. Jan. 26, 2011); Emley v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 1037a (Fla. 6th Cir. App. Ct. July 7, 2006). The citations, together with the Arrest Affidavit, Offense Report, and Breath Test Affidavit, provide competent substantial evidence to establish that the arrest occurred prior to the breath alcohol tests, i.e., that the breath tests were incidental to a lawful arrest, and the hearing officer properly sustained Petitioner’s license suspension.
Accordingly,
it is
ORDERED and ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE
AND ORDERED in Chambers at St. Petersburg,
Pinellas County, Florida, on August 11, 2011.
Original order
entered on August 11, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger,
and Pamela A.M. Campbell.
Copies furnished to:
|
Debra Moss, Esquire Carlson & Meissner 250 North Belcher Road, Suite 102 Clearwater, FL 33765 Attorney for Petitioner |
Richard M. Coln, Esquire Assistant General Counsel DHSMV - Legal Office P.O. Box 570066 Orlando, FL 32857 Attorney for Respondent |