Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – The police officer observed the Petitioner after his motorcycle was inoperable after being submerged in water.  Under unique facts of this case, DHSMV Hearing Officer's conclusion that police officer had probable cause to believe Petitioner was driving or in actual physical control of operable motor vehicle while intoxicated is not supported by competent, substantial evidence.  Petition granted; Hearing Officer's Decision quashed; remanded to DHSMV with instructions.  Brown v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 10-000053AP-88A (Fla. 6th Cir. App. Ct. May 14, 2012).

 

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

 

 

BRIAN BROWN

          Petitioner,

                                                                        Case No. 10-000053AP-88A

                                                                        UCN522010AP000053XXXXCV

v.

 

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

      Respondent.             

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

R. Scott Andringa, Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Richard M. Coln, Asst. Gen. Counsel

Attorneys for Respondent

 

 

PER CURIAM.

          Brian Brown 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 October 25, 2010.[1]  The Decision affirmed the order of suspension of Mr. Brown's driving privileges.  The petition for writ of certiorari is granted.

Statement of the Case

          On October 22, 2010, a hearing was conducted before a hearing officer at the Bureau of Administrative Review for the Department of Highway Safety and Motor Vehicles.  Documentary evidence was presented on behalf of the Department from the Largo Police Department.  Mr. Brown testified on his own behalf and testimony was presented by his witness Robert Lance Graham.  Additionally, Mr. Brown submitted photographs into evidence that depicted the mechanical state of Mr. Brown's motorcycle close to the time of the incident involved in this matter.  A transcript of the hearing is included in the appendix filed by Mr. Brown.

          Mr. Brown testified that on August 7, 2010, he was riding his motorcycle on Ulmerton Road in Largo, Florida, through some rain.  He had trouble seeing due to rain on his eyeglasses.  He pulled his motorcycle off the roadway to clean his glasses and make a u-turn as he had missed his turn.  Mr. Brown thought he was going into a flat field, but instead went down into a ditch filled with water.  Mr. Brown testified the motorcycle was submerged to the extent that it would no longer operate.  The motorcycle would not start or run and Mr. Brown unsuccessfully attempted to push it out of the water-filled ditch. 

          The photographs of the motorcycle admitted into evidence demonstrate that grass and debris was lodged under the seat area where the oil tank and battery are housed.  The debris was "in the pipes and almost into the heads."  Mr. Brown testified that the photographs evidence that the motorcycle's electronics were below the waterline.

          Mr. Brown testified that he went in two nearby bars that his friend Mr. Graham frequented, Sneaky's and Wild Willie's.  He wanted to find Mr. Graham to assist him in removing the motorcycle from the ditch.  Mr. Brown stated he looked inside Sneaky's and Mr. Graham was not there.  Mr. Brown walked "around the corner" to Wild Willie's.  Mr. Graham was not in that establishment either.  Mr. Brown testified that he drank two alcoholic beverages while at the second bar and then called Mr. Graham at home.  Mr. Brown then returned to where the motorcycle was located to wait for Mr. Graham. 

          Mr. Brown testified that upon Mr. Graham's arrival, the two men unsuccessfully attempted to remove the motorcycle from the ditch.  A few minutes later, a Largo Police officer arrived on the scene and inquired if the men were alright.  Mr. Brown stated that it would have been impossible for the Largo police officer to have observed him operating the motorcycle because it would not run.

          Mr. Graham testified that when he arrived at the location, the motorcycle was submerged in the water-filled ditch and only the gas tank, the handlebars, and the seat were visible above the water.  Mr. Graham is an experienced motorcycle operator and opined that the motorcycle was inoperable and would not have started because it was mostly submerged in the water.  Mr. Graham stated that any attempt to start the motorcycle at that time it would have ruined the motor.  When the police officer arrived the motorcycle was "dead in the water."

          The arresting officer's report indicates that Mr. Brown was wet from his feet to his waist from being in the water-filled ditch.  The officer questioned the two men.  The report states that Mr. Brown told the officer he had only two drinks, but then stated that he been drinking at three different locations and had "a few drinks at each place."  The Largo Police DUI Supplement Report indicates that Mr. Brown stated that he had been drinking at Wild Willie's, Sneaky's, and Wing House.  The officer arrested Mr. Brown for driving while intoxicated.  Mr. Brown refused to take a breath alcohol test.

Standard of Review

          Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: The standard of review applicable to circuit court review of an administrative decision is: (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.  State, Dep't of Highway Safety and Motor Vehicles v. Sarmiento, 989 So. 2d 692, 693 (Fla. 4th DCA 2008).  The circuit court in its appellate capacity is not to reweigh the evidence; but only may review the evidence to determine whether it supports the hearing officer's findings.  Dep't of Highway Safety and Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).

Analysis

          In a review hearing, the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.  The scope of the review shall be limited to a determination of (1) whether the law enforcement officer had probable cause to believe that the individual was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances; (2) whether the individual refused to submit to an breath, blood, or urine test to determine alcohol level after being requested to do so by a law enforcement officer; and (3) whether the individual was told that if he or she refused to submit to an alcohol breath, blood, or urine test his or her privilege to operate a motor vehicle would be suspended for a period of one year or, in the case of a second or subsequent refusal, for a period of eighteen months.  § 322.2615(7)(b), Fla. Stat. (2010).  Additionally, the Florida Supreme Court has held that the Department cannot suspend a driver's license under section 322.2615 for refusal to submit to a breath test under section 316.1932 if the refusal is not incident to a lawful arrest.  Fla. Dep't of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1076 (Fla. 2011).

      This Court has reviewed Mr. Brown and Mr. Graham's testimony presented at the hearing, the photographs submitted into evidence, and the Largo Police officers' reports.  The Court concludes that no competent, substantial evidence was presented to support a finding that at the time each of the police officers arrived at the location, or at any time thereafter, the motorcycle was operable.  There is no competent, substantial evidence that police officers observed Mr. Brown in control of the motorcycle at the time it was operable.  The hearing officer made no findings of fact in the "Findings of Fact, Conclusions of Law and Decision" concerning the working condition of the motorcycle.  

      The hearing officer's Decision states that Mr. Brown "admitted to drinking and driving."  The hearing officer does not address the evidence presented to demonstrate that Mr. Brown consumed alcohol after the motorcycle became inoperable.  Under the specific, unique facts of the present case, a statement by Mr. Brown that he had been drinking before the motorcycle became inoperable without more is not competent, substantial evidence to support a finding that Mr. Brown was legally intoxicated at the time he was driving the motorcycle. 

      This Court has not reweighed the evidence, but finds that upon review of the testimony and evidence produced in this unique case, the hearing officer's conclusion that the police officer had probable cause to believe that Mr. Brown was driving or in actual physical control of an operable motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances is not supported by competent substantial evidence.

Conclusion

          The Petition for Writ of Certiorari is granted because the administrative findings and judgment are not supported by competent substantial evidence.  Therefore, the "Findings of Fact, Conclusions of Law and Decision" entered by the hearing officer on October 25, 2010, is quashed. 

          The Department of Highway Safety and Motor Vehicles shall invalidate the suspension of driving privilege and remove from Brian Brown's permanent driving record any entry that reflects the administrative suspension sustained by the October 25, 2010, Decision of the Hearing Officer.

 

          Petition granted; "Findings of Fact, Conclusions of Law and Decision" quashed; and matter remanded the Department of Highway Safety and Motor Vehicles to comply with the directives of this opinion. 

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of _____________________, 2012

 

 

Original order entered on May 14, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

 

 

Copies furnished to:

 

R. Scott Andringa, Esq.

7850 Ulmerton Road, Ste. 1B

Largo, FL 33771

 

Stephen D. Hurm, Gen. Counsel

Richard Coln, Asst. Gen. Counsel

Dep't of Hwy. Safety & Motor Vehicles

P.O. Box 570066

Orlando, FL 32857


[1]   This case has been abated pending the Florida Supreme Court's ruling in Florida Department of Highway Safety and Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1076 (Fla. 2011).