RICHARD J. PREIRA
v.
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
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Petitioner appealed a hearing officer's decision sustaining suspension of her driver's license for refusing an alcohol breath test. The appellate court affirmed, holding that the odor of alcohol provided probable cause for the officer to request the test from the underage driver.
The appellate court held that competent record evidence supported the hearing officer's finding that the officer had probable cause to believe the 19-year-old petitioner was driving with any blood or breath-alcohol level, and that the odor of alcohol was sufficient to establish this probable cause and justify the breath test request.
[1] An appellate court reviewing an administrative decision should not reweigh the evidence or judge the credibility of witnesses; these are functions of the fact-finder.
[2] The odor of alcohol is sufficient to establish probable cause that an underage motorist is driving with any blood or breath-alcohol level.
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Join FLexlaw to unlock all legal intelligence“We conclude there is competent record evidence to support the hearing officer's finding that the officer had probable cause to believe that the 19 year old Petitioner was driving with 'any blood or breath-alcohol level,' and thus to lawfully request that she submit to a breath alcohol test which she refused.”
States the court's holding that probable cause existed for the breath test request.
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Join FLexlaw to unlock all legal intelligencePetitioner, a 19-year-old driver, was stopped and the officer detected the odor of alcohol. The officer requested that Petitioner submit to a breath a…
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from the Florida Department of Highway Safety and Motor Vehicles, Mary Varnadore, Hearing Officer. Richard J. Preira, Esq. for Petitioner. Richard M. Coln, Assistant General Counsel, for Respondent.
Before POWELL, LEBLANC, and J. KEST, J.J.
FINAL ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI
Petitioner seeks certiorari review of an order of a hearing officer after a formal review hearing sustaining the suspension of her driver’s license. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. We have carefully considered the amended petition and appendix, the Department’s response, and the applicable legal authorities.
We conclude there is competent record evidence to support the hearing officer’s finding that the officer had probable cause to believe that the 19 year old Petitioner was driving with “any blood or breath-alcohol level,” and thus to lawfully request that she submit to a breath alcohol test which she refused. See § 322.2616(8)(b), Fla. Stat. (2009); Kreda v. State, 16 Fla. L. Weekly Supp. 489a (Fla. 9th Cir. Ct. March 19, 2009) (odor of alcohol sufficient to establish probable cause that under-age motorist was driving with “any blood-or breath-alcohol level”); Kubala v. State, 17 Fla. L. Weekly Supp. 1008a (Fla. 9th Cir. Ct, June 23, 2009) (same). It was for the hearing officer as the finder of fact – not this appellate court – to judge the credibility of the witnesses and resolve the conflict in the evidence. See Department of Highway Safety v. Satter., 643 So. 2d 692, 695 (Fla. 5th DCA 1994).
Accordingly, it is hereby ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is DENIED. DONE AND ORDERED at Orlando, Florida this __2nd___ day of _June_______, 2011.
_/S/________________________
ROM W. POWELL Senior Judge
/S/
_/S/_________________________ BOB LEBLANC JOHN MARSHALL KEST Circuit Judge Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing order was furnished by mail, this __2nd__ day of __June_______________, 2011 to: Richard J. Preira, Esq., 777 Arthur Godfrey Road, 4th Floor, Miami Beach, Florida 33140; and Richard M. Coln, Assistant General Counsel, P.O. Box 570066, Orlando, Florida 32857.
_/S/________________________________
Judicial Assistant
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Authorities Cited
- Dep't of Hwy. Safety & Motor Vehicles v. Satter, 643 So. 2d 692 (Fla. 5th DCA 1994)