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State v. Porter5/4/2001
Petition for writ of certiorari to the Circuit Court for Pasco County.
On Ronald Porter's petition for a writ of certiorari, the circuit court quashed an order of a Department of Highway Safety and Motor Vehicles hearing officer which sustained the suspension of Porter's driver's license. In turn, the Department petitioned us for certiorari review of the circuit court's order. We grant the writ and quash the order.
Pursuant to section 322.2615(1)(a), Florida Statutes (1997), Pasco County Deputy Sheriff John D. Watson suspended Porter's license after Porter refused to take a breath test. Porter then invoked his right to a formal review of the suspension by a Department hearing officer. § 322.2615(1)(b), Fla. Stat. (1997). No witnesses testified at the review hearing. Rather, as permitted by the statute, the hearing officer based his decision on information contained in sundry documents generated by Deputy Watson in regard to the incident. § 322.2615(11), Fla. Stat. (1997). These included the arrest affidavit in which Deputy Watson gave the following version:
The DEF did operate a 1984 GMC Jimmy Pickup Truck [. . .] on SR 52 WB. Deputy Cox stopped him for going 45 mph in a 35 mph zone and leaving his lane of travel over the right fog line twice. Upon contact I observed a strong odor of alcoholic beverage about him, glassy bloodshot eyes, and was unsteady on his feet. On video he started field sobriety tests then refused to perform them. I advised him it could be used against him. I then placed him under arrest for DUI. After Implied Consent he refused the breath test. He had 4 empty and 8 full Bud Light beers on ice in his truck.
The hearing officer also considered Deputy Watson's sworn DUI Report, which recounted Porter's driving as described above and stated that Porter had been "witnessed and stopped by Deputy Cox." Under "DRIVER CONTACT," Deputy Watson noted that Porter was "slouched down in seat" inside his vehicle. Outside the vehicle he was "unsteady on his feet." In the STATEMENTS section of the report, Deputy Watson quoted Porter as follows: "`I've had 4 beers.' Post-Miranda `I know I screwed up. I shouldn't have been driving.'" The documents before the hearing officer indicated that Porter's pickup truck was impounded and towed from the scene of his arrest. The corresponding Vehicle/Vessel Impound Receipt reflected that the truck contained a "cooler with 8 Bud Lights full on ice, and 4 empty (1 partially filled & cold)."
As prescribed by the statute, the hearing officer's task was to determine by a preponderance of the evidence "whether sufficient cause exist to sustain, amend, or invalidate the suspension[,]" based on the following criteria:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2.
Whether the person was placed under lawful arrest for a violation of s. 316.193.
3.
Whether the person refused to submit to [a breath] test after being requested to do so by a law enforcement officer or correctional officer.
4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. § 322.2615(7)(b), Fla. Stat. (1997).
The hearing officer found in the affirmative on all four issues, and determined that there was sufficient cause to sustain the suspension of Porter's dr
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