Case No.: GCG013236
KENNETH GALE PHILLIPS,
Petitioner,
vs.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
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OPINION OF THE COURT
This matter came before the court on a petition for writ of certiorari. Petitioner, Kenneth Gale Phillips, seeks review of the order of Respondent, the Department, suspending Petitioner's Florida Driver License. This court has jurisdiction. Fla. R. App. P. 9.030(c), and 322.31, Fla. Stat. (2001). Petition denied.
I.
On June 19, 2001 Officer Kellner of the Lakeland Police Department arrested the petitioner along with a Ms. Casini for driving under the influence. Officer Kellner brought them both to the Lakeland Police Department for the purpose of conducting a breath test. Officer Kellner documented that he had observed the petitioner for 22 minutes prior to the petitioner taking the breath test, pursuant to Florida Administrative Code, 11D-8.007(3). The results of the petitioner's breath test were .149 and .148g/210L. The petitioner's license was suspended.
Petitioner requested an informal review hearing. The petitioner was not present but was represented by counsel. At the hearing, counsel for the petitioner argued that Officer Kellner could not have complied with Florida Administrative Code, 11-D-8.007(3). In support of his argument, counsel submitted a notarized statement from the petitioner explaining that Officer Kellner could not have observed him for twenty minutes prior to his breath test being administered. The affidavit states
A. . . Prior to the administration of the breath test, Officer Kellner was filling out paperwork. I was standing to his right rear. While he was completing the paperwork, Officer Kellner was not observing me while he was filling out the paperwork, as I was standing to his rear. This period of time I am referring to is when I was at the police station directly before the administration of the breath test.
Additionally, during the time that Officer Kellner was administering the breath
test on me, the door to the room I was in was closed. While the door was closed you could not see Ms. Casini. I did not observe Officer Kellner watch Ms. Casini. Furthermore, when the door was closed, it prevented him from seeing Ms. Casini.
At the hearing, counsel also attempted to introduce the report by Officer Kellner regarding the time in which he first started to observe Ms. Casini. Counsel argued that the petitioner and Ms. Casini were in separate rooms and argued that either Officer Kellner was watching Ms. Casini or the Petitioner, or neither of the persons, but he could not have been watching both. The hearing officer did not accept the record regarding Ms. Casini into evidence based on the fact that Ms. Casini's hearing was immediately following Mr. Phillips hearing and the hearing officer wanted to Atreat them as two separate cases, be objective and not have them intertwined.
Having reviewed the evidence, the hearing officer determined by a preponderance of the evidence that petitioner's suspension should be upheld. Petitioner seeks review from that order.
II.
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. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982). 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 driving with an unlawful blood alcohol level:
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 had an unlawful blood alcohol level as provided in s.316.193.
Section 322.2615(7)(a), Fla. Stat.(2001). Section 322.2615(13), Florida Statute further provides that the certiorari proceeding shall not be a Ade novo apeal.
III.
Petitioner argues that it was error to not allow the admission of Officer Kellner's report which stated that Kellner first started to observe Ms. Casini at 2:04 am. Petitioner's contends that the evidence would tend to show not only that the 20 minute observation period was not complied with, but with the lack of any other competent evidence that would show substantial compliance with the 20 minute observation rule, the state has failed to meet is burden to show substantial compliance. Thus, the petitioner argues, absent substantial evidence that the officer complied with the 20 minute rule, the breath test results are invalid and there is no competent evidence to support the license suspension.
Petitioner argues that once a driver challenges the lack of compliance with the 20 minute observation period, the burden is then on the state to show substantial compliance. The petitioner relies on Department of Highway Safety and Motor Vehicles v. Farley, 633 So.2d 69 (Fla. 5th 1994) in support of his argument. However, as correctly pointed out by the respondent, in Farley Ait was undisputed that the twenty minute observation period required by Rule 10D-42.024(1)(e) was violated because [the] deputy only observed him for seventeen minutes.... Id. at 70. In this case, Officer Kellner submitted a report regarding the petitioner's breath test in which he stated that he had observed the petitioner for 22 minutes. (Petitioner's App. 5) Additionally, the Breath Test Results Affidavit recites that the test was administered Ausing the procedures described in Sections 11D-8.007(3) and (4), Florida Administrative Code. (Respondent's App. p 8) At the hearing, the petitioner admitted an affidavit which essentially stated that Officer Kellner turned his back on the petitioner prior to conducting the breath test and that Officer Kellner could not have observed Ms. Casini, who was supposed to be under observation at the same time. The hearing officer did admit the petitioner's affidavit but rejected the admission of the document concerning Ms. Casini. The hearing officer considered petitioner's argument as set out in his affidavit; however, the hearing officer found Officer Kellner's documents to be Apersuasive and compelling and upheld the suspension. When the Aevidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. Heifitz v. Department of Business Regulation, Div. Of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). See also Department of Highway Safety and Motor Vehicles v. Dean, 662 So.2d 371, 372-373 (Fla. 5th DCA 1995)(A...the finder of fact is not required to believe the testimony of any witness, even if unrebutted... .) Having reviewed the case, the court finds that it was not error to deny admission of Officer Kellner's report regarding Ms. Casini. Florida Administrative Code, Rule 15A-6018(1). The court further finds that the ruling of the hearing officer is based on competent substantial evidence.
Accordingly, it is ORDERED that certiorari review is DENIED.
ORDERED January 2002.
Charles B. Curry, Chief Judge