CAMILO ESPINOSA

v.

STATE OF FLORIDA, DEPT OF HWY SAFETY AND MOTOR VEHICLES

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

TRAWICK, J.

[*2] On September 11, 2020, at approximately 7:52 p.m., a BOLO was issued for a vehicle matching the description of Petitioner's vehicle. A Coral Gables Police Department officer, Officer Zaccheo, attempted to initiate a traffic stop on the vehicle, but the vehicle continued traveling before turning onto a side-road where the vehicle came to a complete stop. After the vehicle was stopped, Officer Henson arrived on the scene and observed the Petitioner in the driver's seat of the vehicle. He observed that the Petitioner appeared disoriented with glassy eyes and slurred speech. There was an open bottle of champagne visible on the passenger floorboard. A third officer, Officer Contreras, administered field sobriety test exercises. After determining that Petitioner's performance was poor, along with other signs of impairment, Petitioner was arrested for driving while intoxicated (DUI) and transported to the Coral Gables Police Station.

While being interviewed at the station, Officer Steele read the first part of an Implied Consent Form to Petitioner in Spanish. The form is reproduced below. [*3] CORAL GABLES POLICE DEPARTMENT Implied Consent Law/ Ley de Consentimiento Implícito Coral Gables Police Case Number: 20-4737

Driver's Name:

ESPINOSA, CAMILO A

Issued Citation # DU1 - 10184368() That on or about the in MIAMI-DADE 09/11/2020 Traffic Citation Number: 110IDMP Print Advising Officer's Name (1) OFF. STEELE, A (10911) Other Department Case Number (if applicable): Time Advised: 2111

A.M.

State of FL

was placed under lawful arrest for

D.U.I.

by R. ALEX KENSON (Name of Arresting Officer) 11 day of SEPTEMBER, 2020, at 2111 P.M. County,

ENGLISH/INGLES

You are lawfully arrested for driving under the influence of alcohol and/or a controlled substance and that you have been requested to provide a breath test for determining the alcohol content and/or a urine test for the purpose of determining the chemical or controlled substance content of your BLOOD in the presence of alcohol and/or the presence of chemical or controlled substances.

Will you take the test? Yes [] No [] Signature of Subject NOTE: If any chemical test is refused, read the following two Implied Consent Law statements. If you refuse to take the breath or urine or blood test, your privilege to drive shall be suspended. If your privilege has been previously suspended as a result of a refusal to submit to a breath, urine or blood test, your privilege shall be suspended for a period of eighteen (18) months for a second refusal. If your privilege has been previously suspended for a refusal to submit to a breath, urine or blood test, you will be committing a misdemeanor by refusing to submit to a lawful test. If your driving privilege has been previously suspended for a refusal to submit to a breath, urine or blood test, you will be committing a misdemeanor by refusing to submit to a lawful test of your breath, urine, or blood. Additionally, I informed the driver that if he or she holds a CDL, or was operating a CMV, refusal will result in the disqualification of the Commercial Driver's License/driving privilege for a period of one (1) year in the case of a first refusal or permanently if he or she has previously been disqualified as a result of a refusal to submit to any such lawful test. Nonetheless, the driver refused to submit to the test(s) requested.

I understand that refusing to take the breath and/or urine or blood test will be charged and/or suspended for a period of eighteen (18) months, and that if I refuse the test, I will be charged as a misdemeanor by refusing to submit to a lawful test as requested above if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood.

Yes [] No [] Signature of Subject Will you take the test? Yes [] No [] Signature of Subject

ESPAÑOL/SPANISH

Usted está arrestado por conducir bajo la influencia de alcohol y/o una sustancia controlada y que se le ha solicitado realizar una prueba de aliento para determinar el contenido de alcohol y/o una prueba de orina para determinar el contenido de sustancias químicas o controladas en su SANGRE, y/o una prueba de sangre para determinar el contenido de alcohol y/o la presencia de sustancias químicas o controladas.

¿Se someterá a la prueba? Si [ ] No [ ] Firma del Sujeto Nota: Las leyes de Consentimiento Implícito en caso de negarse a someterse a cualquier prueba química Si usted se niega a someterse a una prueba de aliento, orina o sangre, su licencia de conducir será suspendida. Si su licencia ha sido suspendida previamente por negarse a someterse a una prueba de aliento, orina o sangre, será suspendida por un período de dieciocho (18) meses por una segunda negativa. Si su licencia ha sido suspendida previamente por negarse a someterse a una prueba de aliento, orina o sangre, usted estará cometiendo un delito menor por negarse a someterse a una prueba legal. Adicionalmente, le informé al conductor que si él o ella posee una licencia de conducir comercial (CDL), o estaba operando un vehículo comercial (CMV), la negativa resultará en la descalificación de la licencia de conducir comercial/privilegio de conducir por un período de un (1) año en el caso de una primera negativa o permanentemente si él o ella ha sido previamente descalificado como resultado de una negativa a someterse a dicha prueba legal. No obstante, el conductor se negó a someterse a la prueba(s) solicitada(s).

Entiendo que negarme a realizar la prueba de aliento y/o orina o sangre se me cobrará y/o suspenderá por un período de dieciocho (18) meses, y que si me niego a la prueba, se me imputará un delito menor por negarme a presentarme a una prueba legal tal como se solicitó si su privilegio de conducir ha sido previamente suspendido por negarse a someterse a una prueba legal de su aliento, orina o sangre.

¿Se someterá a la prueba? Si [ ] No [ ] Firma del Sujeto Entiendo que negarme a someterme a una prueba de aliento y/o orina o sangre se me imputara un delito menor por negarme a presentarme a una prueba legal como se solicitó y que conduzco bajo la influencia de alcohol o drogas.

Si [ ] No [ ] Firma del Sujeto [*4] This portion of the form stated that the Petitioner was under arrest for driving under the influence of alcohol and or a controlled substance and that he was being requested to provide a breath test for determining the presence of alcohol; a urine test to determine the presence of controlled substances; and a blood test to determine the presence of alcohol and controlled substances. Petitioner was asked by Officer Steele if he was willing the take the test. He indicated that he was, and he signed the Spanish version of the form (although it is not clear on the form itself whether he checked off yes or no to his willingness to submit to the test). According to a notation on the form, this was done at 9:11 p.m. Following his signature on the form, in bold print, is the following language in both English and Spanish:

"Note: If any chemical test is refused, read the following Implied Consent Law:"

After this notation appears an advisement of the statutory consequences of refusing to submit to a test. Following this advisement appears a statement asking the subject whether they understand these consequences, as well as boxes for checking yes or no; another statement again asking whether the subject will take the test along with yes or no boxes; and finally a signature block for the subject. There is no indication on the form that this portion of the form was ever read to or acknowledged by the Petitioner. This would not seem to be a requirement given [*5] that the Petitioner agreed to submit to a breath, blood or urine test when first asked. Another form, an Affidavit of Refusal to Submit to Breath And/Or Urine Test was completed by Officer Steele. This form was also allegedly completed at 9:11 p.m. On this form Office Steele checked off a box indicating in pertinent part that the Petitioner had been requested to submit to a breath test and advised of the consequences of refusal. The form language concludes by stating that the driver (Petitioner) refused to submit to the requested test. The form was signed by Officer Steele and sworn to before an attesting officer. The form is reproduced below. [*6] STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES

AFFIDAVIT OF REFUSAL TO SUBMIT TO

BREATH AND/OR URINE TEST I, OFFICER ANDREW STEELE, (Name of Officer reading Implied Consent Warning) am a member of CORAL GABLES POLICE DEPT (Name of law enforcement agency) or affirm that on or about the 11 day of SEPTEMBER, 2020, at 2111 P.M.

DRIVER

CAMILO (Type or Print) FIRST NAME

MIDDLE OR MAIDEN NAME

ESPINOSA

LAST NAME

DUI ELIS 10184368() the offense of D. U. I. Issued Citation # A1 IMP That on or about the 11 day of SEPTEMBER, 2020, at 2111 P.M. in MIAMI-DADE County, , and I do swear , and was placed under lawful arrest for by R. ALEX KENSON (Name of Arresting Officer) I requested that the driver submit to a [X] breath and/or [] urine test to determine his or her blood alcohol level and/or the presence of chemical or controlled substances. I informed the driver that the refusal to submit to such test(s) would result in the suspension of his or her driving privilege for a period of one (1) year for a first refusal, or for a period of eighteen (18) months if his or her driving privilege had been previously suspended for refusing to submit to a breath, urine or blood test. I also informed the driver that he or she commits a misdemeanor by refusing to submit to a lawful test as requested above if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood. Additionally, I informed the driver that if he or she holds a CDL, or was operating a CMV, refusal will result in the disqualification of the Commercial Driver's License/driving privilege for a period of one (1) year in the case of a first refusal or permanently if he or she has previously been disqualified as a result of a refusal to submit to any such lawful test. Nonetheless, the driver refused to submit to the test(s) requested.

OFF. ANDREW STEELE

Signature of Law Enforcement Officer or Correctional Officer THE AFFIDAVIT MUST BE NOTARIZED OR ATTESTED TO (F.S. 117.10) The foregoing instrument was sworn and subscribed before me this 11 day of September, 2020 by who is personally known to me or who has produced Notary Public HSMV-BAR1001 (REV. 10/2016) as Identification The foregoing instrument was sworn and subscribed before me: Officer Signature of Attesting Officer Title Police Officer Date 09/11/2020 Note: Mail or hand deliver to the designated Bureau of Administrative Reviews office, Department of Highway Safety and Motor Vehicles, with the driver's license, the appropriate copy of the UTC, and the probable cause affidavit. [*7] According to a Breath Alcohol Test Affidavit prepared by Officer Steele, Petitioner was administered a breath test at 9:45 p.m. The result was a reading of .229 g/210L. After a twenty-minute waiting period, Petitioner was asked to provide a second sample. This time, rather than blow air into the mouthpiece, he attempted to suck in air. Officer Steele determined this to be a refusal, resulting in the license suspension at issue before this Court.

The arrest affidavit and the Incident/Investigation Report, both prepared by Officer Henson, mention details regarding the field sobriety test and Petitioner's failure to provide a second breath sample. However, no mention is made of when the Petitioner was advised of the consequences of refusing to submit to a test.

At the formal administrative review of Petitioner's license suspension, no witnesses testified. Various documents, including the ones described above, were admitted into evidence. After the hearing, the hearing officer issued a written order in which she concluded:

Petitioner was requested to submit to a breath test with a Result of 0.229 g/210L at 21:45. Petitioner was requested to provide a second sample, did not follow instructions to provide another sample, sucked air from the mouthpiece therefore it was deemed a refusal. Petitioner was read Implied Consent warnings and maintained his refusal.

On an appeal of a decision of an administrative hearing officer, this court's review is limited to determining whether the agency 1) complied with procedural [*8] due process; 2) observed the essential requirements of law; and 3) based its ruling on competent, substantial evidence. City of Deerfield Beach v. Valliant, 419 So. 2d 624, 626 (Fla. 1982); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); City of Miami v. Cortes, 995 So. 2d 604 (Fla. 3d DCA 2008).

Petitioner here only contests the existence of competent substantial evidence to support the hearing officer's conclusion. Nonetheless, the record supports a finding that the Petitioner received procedural due process and that the hearing officer observed the essential requirements of law.

Competent substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980). This Court may not reweigh the evidence nor substitute its judgment for that of the lower tribunal. Heggs, 658 So. 2d at 530. The Florida Supreme Court held that "[a]s long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended." Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001).

Petitioner argues without any record support other than Officer Steele checking off a box on a pre-printed form, that there is a lack of competent substantial evidence to support the hearing officer's decision. He cites the case of [*9] Flanary v DHSMV, 17 Fla. L. Week Supp 1078a (Fla. 11th Jud. Cir. App. July 21, 2010) in support of this argument. In Flanary, there were inconsistencies in the arrest paperwork, including both "yes" and "no" answer boxes being checked; different answers to the same questions in different languages; the identification of the Petitioner as both Hispanic and non-Hispanic; documents which indicated that the Petitioner had refused to submit to a breathalyzer test without indicating that he had been given implied consent warnings; and a one-page form with marked answers which was then crossed out with "refusal" written across the page. A panel of this Court found that since no live testimony was presented to clarify these apparent inconsistencies, there was a lack of competent substantial evidence to support the hearing officer's determination.

This Court does have reservations about the evidence supporting the Hearing Officer's conclusion. While the Hearing Officer found that the Petitioner was read an implied consent warning and that he maintained his refusal, the Affidavit of Refusal to Submit to Breath And/Or Urine Test was completed at 9:11 p.m., prior to the first test being administered at 9:45 p.m. There is no indication that Petitioner was warned at a later time of implied consent and the consequences of a refusal to submit to a test. In fact, the form indicates that the warnings regarding [*10] implied consent are not to be read until a "chemical test" is refused. Particularly troubling however is that while Petitioner signed the form agreeing to take the test, he did not sign the form acknowledging that the implied consent warning was given. While it is entirely possible that Officer Steele may have read the implied consent warning at a later point in time, or that Petitioner refused to sign the form acknowledging the warning was read to him, there is nothing in the record to substantiate these conclusions other than Officer Steele checking off a box followed by form language. Indeed, neither the arrest affidavit, the offense incident report or any other report make any mention of the implied consent warnings being given at all.

As in Flanary, the DHSMV chose not to present witnesses to explain the circumstances surrounding the Petitioner's implied refusal and accompanying implied consent warnings. However, what distinguishes this case from Flanary is that in Flanary there were significant discrepancies and conflicts in the record. Here, while questions are raised by the documents considered by the Hearing Officer, we cannot say that there is no competent substantial evidence to support her conclusion. The Affidavit of Refusal to Submit to Breath And/Or Urine Test was sworn to by Officer Steele. In it he stated, albeit in pre-printed language, that the implied consent warning was given. While there is nothing else in the record N 1 Based on the record before us, we will assume that the term "chemical test" applies to a breathalyzer test as well. [*11] to support the conclusion that an implied consent warning was appropriately given, unlike Flanary, there is nothing contradicting the affidavit either. As a result, we are reluctantly constrained to find that there is sufficient competent substantial evidence to sustain the Hearing Officer's determination that implied consent warnings were given and the Petitioner maintained his refusal.

We caution Administrative Hearing Officer's that the types of omissions evident here, as well as the discrepancies discussed in Flanary, should not be cavalierly ignored by the Hearing Officer. Respondent should be required to present evidence to address these types of issues. The conscious choice not to call witnesses due to budgetary concerns and the routine and unexplained unavailability of witnesses should not be an excuse for allowing the Respondent to make a questionable "barebones" presentation. Due process requires more than simply deferring to the wishes of the Respondent.

The Petition for Certiorari is DENIED.

WALSH and SANTOVENIA, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL