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Successful Florida DUI Appeal | Refusal to submit to breath test

Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 16-2008-CA-11287-XXXX-MA, Division CV-C. December 15, 2008. Counsel: Mitchell A. Stone, Stone, Taylor & Associates , Jacksonville, for Petitioner. M. Lilja Dandelake, for Respondent.

ORDER GRANTING WRIT OF CERTIORARI

(L. HALDANE TAYLOR, J.) Petitioner filed a petition in the above-styled cause seeking certiorari review of the Department of Highway Safety and Motor Vehicles' Findings of Fact, Conclusions of Law and Decision sustaining Petitioner's DMV hearing for refusal to submit to a breath test. This Court sitting in its appellate capacity having heard arguments and having reviewed the briefs and pertinent case law finds as follows:

The Case:

Petitioner's Writ of Certiorari identified two issues which Petitioner alleged the hearing officer departed from the essential requirements of law and violated Petitioner's right to due process of law. This Court granted certiorari review and conducted a hearing on December 3, 2008.

Issue One of the Petition for Writ of Certiorari concerned Petitioner's assertion that the hearing officer departed from the essential requirements of law by failing to follow the law, specifically the accident report privilege as set forth in F.S. 316.066(7). Issue Two of Petitioner's Petition asserted that the Hearing Officer violated Petitioner's right to due process of law by basing her decision on facts not recorded in the documents entered into the record, thereby demonstrating her inability to be fair and impartial.

Facts:

The underlying DMV hearing was conducted on documents alone without witness testimony which is permissible under the rules governing the hearings, FAC Chapter 15A-6. According to the reports and documents entered into evidence, Deputy Manning and Deputy Shoenfield responded to a traffic accident at SR A1A and Marlin Avenue. Deputy Manning's affidavit was entered into evidence at the hearing. Deputy Manning's affidavit verifies that when he arrived he saw three vehicles pulled off the east side of SR A1A in the northbound lane. He began an accident investigation.

Deputy Manning's affidavit indicated that the driver of the third vehicle, said a vehicle hit him which caused him to hit the vehicle in front of him. The affidavit did not indicate that Deputy Manning saw the driver behind the wheel. Rather the affidavit suggested the driver was not in the vehicle because according to the affidavit they walked to the rear of the vehicle. However, there was no information verifying Officer Manning saw the driver get out of the vehicle before they walked to the rear of the vehicle.

According to his affidavit Deputy Manning did not see any visible damage to the rear of the third vehicle and questioned the driver about that. Deputy Manning claimed the driver changed his story and said he was not rear ended and that he did not know what had happened. Deputy Manning then turned the accident investigation over to Deputy Beckton who had arrived.

Deputy Beckton's report indicated that he made contact with Petitioner. He asked Petitioner what happened with the crash. Petitioner stated someone hit him from behind. He asked why there was no visible damage. Petitioner did not respond. He asked Petitioner if he was injured and Petitioner told him he was not injured. He made observations of Petitioner which caused him to suspect DUI.

Therefore, Deputy Beckton concluded the crash investigation and advised Petitioner he was going to conduct a criminal investigation for driving under the influence. He read Petitioner his constitutional rights and asked Petitioner if he would consent to a breath test and read Petitioner implied consent. Petitioner invoked his right to counsel.

Based on that, Deputy Beckton advised Petitioner that he could not talk to him or question him further. Petitioner then asked what Deputy Beckton wanted him to do. Deputy Beckton asked Petitioner if he was waiving his rights. Petitioner told him he was not that drunk and asked to call his lawyer. Deputy Beckton then arrested Petitioner.

The accident report in evidence contained information on how the accident occurred. It also had witness statements attached to the report. The witness statements did not specifically identify Petitioner or anyone else as the driver. Rather both witness statements referred to the driver as a white male in a grey shirt. Importantly, the accident report itself identified a completely different person with Petitioner's same name as the driver. In that respect, the accident report identified someone with a different date of birth, driver's license number and address than Petitioner as the driver.

This discrepancy was not reconciled by any other document. Importantly, no witnesses testified at the hearing. Therefore, the Driving Under the Influence Report/Probable Cause Affidavit, the accident report, witness affidavits and the tickets Deputy Beckton wrote are all that was in evidence for the Hearing Officer to consider.

Analysis:

The reports entered into the record do not reflect that anyone specifically saw Petitioner behind the wheel of a vehicle. Statements were alleged to have been made by Petitioner during the accident investigation implying he was the driver. However, Petitioner invoked the accident report privilege and moved to suppress those statements. The hearing officer denied that motion without explanation. Petitioner also moved to invalidate the suspension based on the lack of probable cause to arrest due to insufficient proof that Petitioner was the driver or was witnessed behind the wheel. That motion was denied as well without explanation.

As to findings of fact made by the hearing officer in the final order, the Driving Under the Influence Report/Probable Cause Affidavit verifies that field sobriety exercises were not requested or performed. However, in her decision the hearing officer made a finding of fact that the Petitioner had agreed to perform field sobriety exercises and performed unsatisfactorily on the exercises. That was cited as a basis for probable cause to arrest. However, no report in evidence indicated that field sobriety exercises were ever conducted. Therefore, this finding of fact was completely unsupported by the record.

Ruling:

With regard to Issue One this Court finds that the Hearing Officer departed from the essential requirements of the law by failing to follow the law as set forth in F.S. 316.066(7) specifically referred to as the accident report privilege. By failing to suppress the statements made by Petitioner during the accident investigation, the Hearing Officer misapprehended the law. In fact, the statements attributed to Petitioner that established him as the driver should have been suppressed. Norstrom v. State, 613 So.2d 437 (Fla. 1993).

In that respect, the Hearing Officer should have granted Petitioner's motion to suppress statements provided during the accident investigation. Without those statements there is not sufficient evidence proving Petitioner was the driver. In fact, the reports do not indicate either officer saw Petitioner behind the wheel and the accident report identifies some other person with Petitioner's same name as the driver. Importantly, the civilian witness affidavits only identify a white male with a grey shirt as the driver. However, there is nothing of record verifying Petitioner was the white male in the grey shirt or that Petitioner was wearing a grey shirt.

Therefore, to conclude that Petitioner was the driver based on the reports in evidence, absent the inadmissible statements, a finder of fact would have to rely on assumptions, supposition and conjecture. To that end, it would constitute a flip of the coin to decide Petitioner was the driver when confronted with the admissible information and in light of the conflicting information contained in the accident report. Thus, the hearing officer departed from the essential requirements of law by reaching a conclusion not supported by the admissible evidence of record. See Trimble v. State, 821 So.2d 1084 (Fla. 1st DCA 2004).

Additionally, with regard to issue two raised by Petitioner this Court agrees that the Hearing Officer departed from the essential requirements of the law and violated Petitioner's right to due process of law by basing her decision on facts not of record. This is evidenced by the fact that the hearing officer cited in her Findings of Fact, Conclusions of Law and Decision that the Petitioner performed unsatisfactorily on the field sobriety exercises when in fact according to all the reports in evidence no field exercises were ever offered to Petitioner. Moreover, there is nothing in the record indicating Petitioner actually performed field sobriety exercises.

As such, the hearing officer departed from the essential requirements of law by making such a finding of fact. In that respect, manufacturing evidence in order to support a decision demonstrates an inability to be fair and impartial. This constitutes a due process violation in and of itself since it is important that hearing officers act in a manner that demonstrates their ability to be fair and neutral fact finders in conducting such hearings. Department of Highway Safety and Motor Vehicles v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995).

THEREFORE, it is hereby ordered and adjudged:

1. That the Petition for Writ of Certiorari is hereby GRANTED.

2. That the Order suspending Petitioner's driving privilege entered by Respondent on July 25, 2008 is hereby REVERSED AND QUASHED.

3. That Respondent shall reinstate Petitioner's driving privilege for the suspension period referenced in its Order entered on July 25, 2008.

4. That Respondent shall remove from Petitioner's permanent driving record any entry which reflects the administrative suspension that was sustained by Respondent's Order suspending Petitioner's driving privilege, entered July 25, 2008.

5. Petitioner's motion for attorney fees is denied.

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