Case No.: GCG01-2337
MICHAEL W. EVANS,
Petitioner,
vs.
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY, AND MOTOR VEHICLES,
Respondent.
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OPINION OF THE COURT
This matter is before the court on a petition for writ of certiorari. Petitioner, Michael Evans, seeks review of an order of the Department of Highway Safety, and Motor Vehicles, (DHSMV), suspending his driver license. This court has jurisdiction. Fla. R. App. P. 9.030(c), and ' 322.31, Fla. Stat. (2000). Petition denied.
II.
According to the testimony and record evidence, Officer Rose, of the Lakeland Police Department, was flagged down by a witness advising him that a driver, identified as the petitioner, was getting into a vehicle and that he was too drunk to drive. By the time Officer Rose got up to the car, the petitioner had started the car and put it in reverse before he stopped for Officer Rose. Upon making contact with the petitioner, Officer Rose noted that the driver appeared to be drunk, so he called for backup. Officer Lehman of the Lakeland Police Department responded. Upon arriving on the scene, Officer Lehman made contact with the petitioner. When Officer Lehman asked petitioner for his drivers license, petitioner informed hin that he did not have a license on him because it was suspended for DUI. Officer Lehman noted that the petitioner had a very strong odor of an alcoholic beverage on his breath, and observed that his eyes were bloodshot and watery, his hair uncombed, and his speech slurred and mush mouthed. Officer Lehman also noted that the petitioner was swaying back and forth, had a difficult time maintaining his balance, and staggered side to side while he walked. When Officer Lehman asked the petitioner if he had a medical condition, the petitioner replied ANo, I am just drunk.@
Officer Lehman requested and the petitioner agreed to perform a series of field sobriety tests. Based on the petitioner=s poor performance, Officer Lehman arrested the petitioner for DUI and transported him to the breath testing facility. Petitioner was read the implied consent warning and refused to submit to a breath test.
The arresting officer issued the petitioner a citation for DUI for refusing to submit to a lawful breath test, suspended his driving privilege pursuant to s. 322.2615 (1)(a), Fla. Stat. (2000), and issued him a citation for driving while licence suspended or revoked. Petitioner requested a formal review of his driver=s license suspension. Having considered the testimony and the record evidence, the hearing officer determined that the preponderance of the evidence supported petitioner=s driver=s license suspension. The Department informed the petitioner in an order dated May 15, 2001, that the suspension of his driving privilege for refusing to submit to a valid breath test was sustained for a period of one year. Petitioner seeks review from that order.
III.
When reviewing an administrative proceeding on a petition for writ of certiorari, this court must determine whether the hearing officer followed the essential requirements of the law, whether the petitioner was afforded due process, and whether the decision below is supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Section 322.2615, Fla. Stat. provides the hearing officer=s standard of review for suspension actions as follows:
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), 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 the following issues if the license was suspended for refusing to submit to a lawful breath test:
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 any such test after being requested to do so by law enforcement officer; and
4. Whether the person was told that if he refused to submit to such a test his 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.
Section 322.2615(7)(b), Fla. Stat.(2000).
III.
Petitioner raises only one issue on review and that is that there was insufficient evidence to establish that the petitioner was either operating or in actual physical control of the motor vehicle on the date in question because when Officer Lehman arrived, the petitioner was not driving or in actual physical control of the vehicle. However, this argument fails because Officer Rose=s observation of the petitioner behind the wheel was properly relied upon by Officer Lehman pursuant to the fellow officer rule. Fla. Stat. 901.18, Fla. Stat. (2000); Department of Highway Safety and Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001); Department of Highway Safety and Motor Vehicles v. Shonyo, 659 So.2d 352 (Fla. 2d DCA 1995); State v. Eldridge, 565 So.2d 787 (Fla. 2d DCA 1990).
It is hereby ORDERED that the petition for writ of certiorari is DENIED.
ORDERED October 2001.
Charles B. Curry, Chief Judge