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Department of Highway Safety and Motor Vehicles v. Pitts5/2/2002
Certiorari - Original Jurisdiction.
By a petition for writ of certiorari, the Department of Highway Safety and Motor Vehicles seeks review of a decision of the circuit court which granted certiorari relief to Victor Lee Pitts. After finding that Pitts was not accorded procedural due process in the administrative hearing in which he challenged the suspension of his license for driving with an unlawful alcohol level, the circuit court granted the petition for writ of certiorari, quashed the final administrative order and reinstated Pitts' driving privilege. Because the circuit court's decision applied the correct law, we deny the Department's petition.
Factual and Procedural Background
On February 17, 2001, Deputy T.J. Brown of the Clay County Sheriff's Office was dispatched to a cul-de-sac at the end of Caleb Court, where he found Pitts standing by a car that was stuck in a ditch. Fire rescue personnel were already on the scene and advised Deputy Brown that they found Pitts in the car in the ditch. Deputy Brown, who is a DUI enforcement officer, smelled alcohol on Pitts' breath and asked Pitts if he had been drinking. Pitts answered "yes." Deputy Brown asked Pitts to undergo field sobriety tests and Pitts refused. Deputy Brown observed that Pitts' movements were slow and sluggish while he was in the ditch, but that once Pitts climbed out of the ditch, he was steady on his feet. The deputy reported that Pitts' face was pale, his eyes watery and slightly bloodshot, and his speech was "fair." Deputy Brown arrested Pitts. After the arrest, the deputy found a cooler of non-alcoholic beer in Pitts' vehicle. He subsequently admitted at the administrative hearing that non-alcoholic beer does have an odor similar to alcohol.
At the police station, a licensed intoxilyzer operator twice administered a breath test. The tests indicated that Pitts had an alcohol level of .134 and .125. Pitts' license was suspended for driving with an unlawful alcohol level. He requested a formal administrative hearing which was held before a hearing officer employed by the Department.
Prior to the hearing, Pitts obtained a subpoena duces tecum directing Deputy Brown to produce the videotape recording of the stop and arrest. At the hearing, Deputy Brown testified that he did not bring the videotape because he does not activate his recording device when the suspect refuses to perform the sobriety tests. Nonetheless, he acknowledged that even though he calls it a "no video" when a driver refuses to do the roadside tests, it was conceivable that a recording of his encounter with Pitts could exist. He testified that, if a video recording existed, it would appear on a tape turned in at approximately the same time as the Pitts arrest.
The hearing officer recognized that defense counsel was entitled to inquire concerning why the encounter was not videoed and, if a tape was available, that the tape should be produced. Nevertheless, the hearing officer ruled that, if counsel wanted to determine whether a videotape actually existed, counsel could attempt to locate the videotape. Counsel then attempted to question Deputy Brown concerning the identity of the arrest made closest to the Pitts arrest, so that counsel could locate the video of that arrest to determine if it contained all or part of the roadside encounter between Deputy Brown and Pitts. The hearing officer prevented this line of questioning, however, by requiring counsel to move on to another subject.
At another point in the hearing, Pitts' counsel questioned Deputy Brown about his decision not to inquire about what Pitts was drinking. Counsel asked the deputy whether it would have made a difference if Pit
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