Congrats to Lee Lockett, a DUI defense attorney in Jacksonville Beach, FL. I cut and paste below an important ruling he just obtained after filing a petition for a writ of certiorari against the Department of Highway Safety and Motor Vehicles (DHSMV).
The ruling is important for two reasons. First, it points out the problem with hearing officers at the DHSMV training local law enforcement officers on how to “win” formal review hearings.
I wrote a blog article about similar training that occurred in Hillsborough County after hearing about Lee Lockett’s discovery in Duval County, FL. Through a public record request, I was able to obtain the DHSMV training material used when DHSMV hearing officers taught the class at HSCO in Hillsborough County, FL. Apparently, this training was occurring throughout the State of Florida.
Lee Locket argued, on behalf of this client, that due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. In the opinion below, the court AGREED with that argument.
Almost all of the DUI enforcement officers in Hillsborough County attended this training. Several of our local hearing officers, including the supervisor of the Tampa BAR, were also involved in this training. So the same arguments can be used in Hillsborough County for a Motion To Disqualify and the Motion To Invalidate based on due process.
Second, the opinion explains why the breath test operator’s failure to appear, even in a refusal case, requires the administrative suspension to be invalidated.
Read the opinion below (additional paragraph breaks were added):
NICOLE XXXXXX, Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 4th Judicial Circuit (Appellate) in and for Duval County. Case No. 2017-AP-000108. March 28, 2018. L. Lee Lockett, Jacksonville Beach, for Petitioner. Brandi Thompson, for Respondent.
ORDER GRANTING PETITIONER’S PETITION FOR WRIT OF CERTIORARI (COX, J.) This matter is before the Court on Petitioner Nicole XXXXX’ (“Petitioner”) Petition for Writ of Certiorari filed September 6, 2017. The Court heard oral argument on the Petition on January 3, 2018. Having reviewed the Petition, Respondent’s Response, and Petitioner’s Reply, considered the arguments of counsel, examined the record before this Court, and being otherwise fully advised, the Court grants the Petition.
Petitioner asserts three grounds in support of her Petition: (i) denial of due process; (ii) the breath test operator failed to appear; and (iii) lawfulness of the detention and arrest.
The Supreme Court of Florida has set forth the standard of review for a Petition for Writ of Certiorari such as the one before this Court.
Where a party is entitled as a matter of right to seek review in Circuit Court for administrative action, the Circuit Court must determine whether the procedural due process is accorded, whether the essential requirements of law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.
City of Deerfield Beach v. Vailant, 419 So. 2d 624, 626 (Fla. 1982). In fulfilling its duties, the circuit court is not permitted to reweigh the evidence below. However, the circuit court is not required to ignore evidence, when that evidence contradicts witness testimony, or findings of fact by the hearing officer below. Wiggins v. Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) [42 Fla. L. Weekly S85a].
Due Process
The Petitioner argues due process was denied because the Bureau of Administrative Review (hereafter, “B.A.R.”) has provided training to law enforcement officers regarding their appearances in license suspension hearings. Other judges in this circuit have previously rejected this argument. See, e.g., Spear v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-CA-579 (Fla. 4th Cir. Ct. June 15, 2017); Dicicco v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP-62 (Fla. 4th Cir. Ct. August 25, 2017); Goode v. Dep’t of Highway Safety and Motor Vehicles, No. 2017-AP- 85 (Fla. 4th Cir. Ct. October 11, 2017); Arnold v. Dept of Highway Safety and Motor Vehicles, No. 2017-CA002318 (Fla. 4th Cir. Ct. December 21, 2017).
The B.A.R.’s statewide campaign instructs police officers on the issues that arise at formal review hearings, how to testify at them, and what information should be included and what information should be excluded from their probable cause affidavits. Petitioner included a voluminous set of attachments as well as the curriculum offered to police at these seminars. These have been reviewed by this Court.
One of the attachments contains a flyer sent out by the B.A.R. regarding these seminars. It is solely addressed to law enforcement and boldly proclaims “This is your opportunity to find out the facts and issues that directly affect the results of your hard work! We encourage you to attend! See you there.” (no emphasis added). This training session was held in Jacksonville at the Jacksonville Sheriff’s Office on July 19, 2016. Another Jacksonville training session was held at the Florida Highway Patrol’s Office on July 18, 2016. As can be seen by the provided sign in sheets, all the attendees are from law enforcement.
Another announcement entitled “TRAINING FOR ALL LAW ENFORCEMENT AGENCIES” (Cape Coral Police Dept. 9/13/16), included a section in it addressing the covered topics. Under it, topics such as “Administrative suspension 322.2616 (zero tolerance),” “Probable Cause Affidavits,” and “Statistics for your area and your agency” were included. What is most troubling about this particular flyer is that it includes an advisement to police officers, who are actual litigants/parties/witnesses to a formal review hearing, that “We will discuss what is required to be in a probable cause affidavit and what should not be in there.” (emphasis added).
The Petitioner’s attachments also establish that the B.A.R. not only sponsored and administered these training seminars, but that hearing officers throughout the state were directly involved as well. As can be seen in the attachments, hearing officers were used as instructors at these seminars.
Motorists in Florida are entitled to a formal review hearing that is fair and that is presided over by a neutral and detached magistrate. Motorists are also entitled to due process. “Our supreme court has defined the elements of due process as notice and an opportunity to be heard [that is] full and fair, not merely colorable or illusive……Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” DHSMV v. Griffin, 909 So.2d 538 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2065a] (citing Ryan’s Furniture Exchange, Inc. McNair, 120 Fla. 109, 162 So. 483,487 (1935)).
Hearing officers in Florida are required to be neutral and any action on the part of the B.A.R. or its hearing officers that amounts to advocating for one side over the other is a violation of due process. Id. at 542 (“We agree that the hearing officer departed from her neutral role as magistrate when she stopped the hearing, located the registration certificate. . . and entered it as evidence during the hearing.”).
A litigant is entitled to have confidence that the hearing officer before whom he or she appears is acting impartially as a fact finder.” Id. at 542; Ducre v. State, 768 So.2d 1159 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D2212b]. It is troubling to this Court that anyone could feel confident that a hearing presided over by the B.A.R. would be fair or presided over by a magistrate who is neutral considering that the B.A.R. seems to be just as concerned about invalidation rates as those in law enforcement would be.
When reviewing the training manual:
a) The very first page of the B.A.R.’s training manual states that the percentage of suspensions that are sustained at formal review hearings stands at an incredible 95.3%.
b) In commenting on this successful campaign to keep such rates high, the manual asks the police officers, “While sustained rates of 95% and 90% are good and indicative of the fine work you are doing, how many of you would like to see those numbers even higher?” This also is a comment by the hearing officers and the B.A.R. as a whole that there is a firmly held belief that the police officers are doing “fine work” in all cases.
c) The B.A.R. goes on to try and offer the police tips on how to reduce the number of invalidations. “Let’s look at the reasons for those invalidations and what might be done to reduce the number that are invalidated.” The manual goes on to list the common reasons why suspensions are invalidated and how to avoid them.
d)The training also includes tips on what information should go into the probable cause affidavit.
e) The training also discussed case law that can be considered “law enforcement friendly.”
It should go without saying that parties to an adversarial hearing such as this should never be provided with strategic tips by the judge or magistrate. McFadden v. State, 732 So.2d 1180 (Fla.4th DCA 1999) [24 Fla. L. Weekly D1040b] (judge departed from neutral role when he invited the state to cure the defects in its case by revising its complaint to meet the elements of the violation and was actively examining witnesses); Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (judge was advocating for the state when he passed a note to the prosecutor giving the attorney strategy tips).
“While we see no constitutional infirmity in non-lawyers serving as hearing officers under sec. 322.2615, we do strongly caution those hearing officers that they must take extraordinary care to be as impartial and neutral as the members of the judiciary are required to be.” Griffin v. State, 909 So.2d at 542. As one local circuit judge has noted, the minds of the hearing officers “. . .are made up before the hearing, and indeed, an order affirming the suspension is already drawn.” Detlefsen v. DHSMV, Case No. 16-2012-CA-6869 (4th Jud. Cir. Ct. 8/1/13).
The Florida Supreme Court in the Wiggins case (cited herein) addressed these hearings and how unfair they often times can be. Wiggins v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. SC14-2195 (Fla. 2017) [42 Fla. L. Weekly S85a]. In distinguishing administrative tribunals conducted by the B.A.R. from other types of administrative proceedings such as those conducted by zoning boards, the high Court commented that B.A.R. hearings should be reviewed differently by circuit courts as those hearings tend to involve less fairness than other administrative hearings.
“However, this Court and others have voiced concerns with fairness and due process specifically in the context of hearings held before Department hearing officers under section 322.2615.” Id.; Forth v. Fla. Dep’t of Highway Safety & Motor Vehicles, 148 So.3d 781 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1352a] (quashing the circuit court’s decision to remand to the Dep’t after it was found that the hearing officer was not impartial); Fla. Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c], cause dismissed, 667 So.2d 774 (Fla. 1996)(“The frequency with which conscientious trial judges of this state issue decisions that have the effect of providing more procedural safeguards to licensees in these revocation hearings suggests a continuing concern about the fairness of this statutory procedure.”).
The Respondent contends that the issue involving Disqualification was “squarely addressed by this circuit” and cited to Spear v. Department of Highway Safety Motor Vehicles, Case No. 2017-CA-000579 (Fla. 4th Cir. Ct., June 15, 2017) and Diccico v. Department of Highway Safety and Motor Vehicles, Case No. 16-2017-AP-000062 (Fla. 4th Cir. 2017). This is not entirely so. The Spear Court did not address the conflict of interest issue that exists when analyzing disqualification.
Litigants need not show a direct, individualized bias against the moving party personally to prevail on a Motion For Disqualification. Conflicts of interest can be sufficient in and of themselves to grant relief. W.I. v. State, 696 So.2d 457 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1634c] (even where there is no direct conflict of interest, the petitioner still asserted a well-founded fear that he would not receive a fair trial before the judge).
Here, a clear conflict of interest exists with this hearing officer (as an employee of the Department/B.A.R.) due to the Department’s very open and public policy of ensuring that invalidation rates at these hearings are reduced. As an employee of the Department/B.A.R., the hearing officer must be loyal to their policies. Thus, where the conflict of interest at play creates a question as to the judge’s ability to be impartial, a Motion For Disqualification should be granted. Brown ex rel. Preshong-Brown v. Graham, 931 So.2d 961 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1390a]. A judge shall disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3.
The Spear case is also distinguishable because it did not deal with an arresting officer who received the B.A.R. training at issue. Here, Trp. Healy did, in fact, receive the training from the B.A.R. and its hearing officers. The record is replete with evidence of hearing officer participation in this training.
Because the officer in Spear was not a part of this training, it allowed the Spear Court to rely on a case that would not apply here. In Dep’t of Highway Safety and Motor Vehicles v. Stewart, 625 So.2d 123 (Fla. 5th DCA 1993), the driver’s argument that the hearing procedure at the B.A.R. was unconstitutional because the hearing officers were fellow employees of the highway troopers whose affidavits and testimony hearing officers are called upon to evaluate was rejected.
However, it’s important to note that in Stewart, there was no evidence of cooperation between the troopers and the hearing officers as we have here. The driver’s attorney in Stewart merely argued that because they worked in the same department that it created an unlawful hearing.
As the Petitioner’s appendix shows, not only is Trp. Healy employed by the same department as the hearing officer, Trp. Healy received training from the B.A.R. on how to testify so as to decrease the number of suspensions that are invalidated.
For similar reasons, the Diccico opinion is inapplicable here. As in Spear, Diccio did not involve an arresting officer who actually received the B.A.R. training at issue. Additionally, the Diccio Court actually found that this training was troubling. The Court there stated that:
“This Court is certainly troubled by the extent to which supposedly neutral hearing officers have engaged in the training now questioned. Such training may have extended to teaching law enforcement officers the best methods for winning their cases.”
(emphasis added). In denying the Petition, the Diccico Court did not address the conflict of interest issue outlined above nor does this opinion involve the separate ground for invalidation asserted here. In addition to the Disqualification motion, the Petitioner here filed a separate motion for invalidation based on the same B.A.R. training that does not involve issues of disqualification and instead focuses on due process violations based on the training.
Consider the holding in Griffin. There, a similar due process challenge was lodged against the B.A.R. The Griffin Court ruled that the use of non-lawyer hearing officers was not unconstitutional so long as the hearing afforded an adjudication of rights that is full and fair. Id. at 541. In Griffin, the drivers, unlike here, did not offer any specific examples of why the hearings were un-fair.
Had the Griffin Court been aware of the issues in the case at bar, it is unlikely that it would have found such activity to be constitutionally sound. The elements of due process include notice and an “opportunity to be heard [that is] full and fair, not merely colorable or illusive. . . Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.” Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla.109, 162 So. 483 (1935).
The Respondent claims there is no legal provision for disqualification of all hearing officers as a group. Whether or not there is such an administrative rule is not controlling here. Due process is a right that cannot be abridged or denied by an administrative agency.
Even if the absence of such an administrative rule was relevant, the Petition can be granted nonetheless due to the lack of due process in the Petitioner’s proceedings. Thus, the hearing officer erred in denying both the Motion To Disqualify and the Motion To Invalidate based on due process.
Breath Test Operators Failure to Appear
The Petitioner next argues that § 322.2615(11), Fla. Stat., mandates invalidation of the suspension due to the failure of the breath test operator to appear. Here, the Petitioner refused the requested breath test.
Petitioner subpoenaed the breath tech, however, he failed to appear. The hearing officer denied Petitioner’s request to invalidate based on this failure to appear. The Respondent’s position on this issue is that because this case involves a refusal, the Petitioner cannot be afforded relief under section 322.2615, Florida Statutes. Sec. 316.1932 which authorizes a law enforcement officer to request a breath, blood or urine test under certain conditions after a driver is lawfully arrested. S. 316.1932(1)(a)l.a. states,
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.
The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test.
The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties.
The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.
(emphasis added). As set out in this section, there are very specific requirements for when such a test may be requested and specific directives as to what must be done if a driver indicates a desire to refuse such a test.
Sec. 322.2615, Florida Statutes, establishes the statutory guidelines for the formal review hearing to review a driver’s license suspension imposed due to an unlawful breath test result or the refusal to submit to a breath, blood, or urine test that is required by s. 316.1932. Among the guidelines set out in s. 322.2615 is the scope of review for the Hearing Officer at these proceedings, the authority of the Hearing Officer as it relates to these proceedings, and the rights and protections afforded a driver. Among these rights and protections afforded the driver are the guidelines setting out the witnesses who can be subpoenaed and the remedies available if a witness fails to appear at the hearing.
The issue resulted from the amendment of Sec. 322.2615, effective July 1, 2013. The changes pertinent to this petition are set out in s. 322.2615(6) and s. 322.2615(11). S. 322.2615(6) states,
(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged . . .
The underlined sections are the relevant additions that were made.
Sec. 322.2615(11) states, in its entirety,
The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.
Again, the underlined section is the section that was added effective July 1, 2013. Although there is a clear distinction between these sections as to the remedy for the failure to appear of an arresting officer or breath test technician and the failure to appear of any other witness, there is no distinction made between breath test cases and refusal cases.
Sec. 322.2615(7) requires the hearing officer to consider, (1) whether the arresting officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or controlled substance, (2) whether the driver was lawfully arrested for DUI, and (3) either whether the driver had an unlawful blood alcohol level; or, in the case of a refusal to submit to a test, whether the driver was advised that if they refused to submit to a breath, blood or urine test, their driving privilege would be suspended, and whether after having been so advised, the driver refused such test. Sec. 322.2615, Fla. Stat. (2016). Thus both scopes of review require consideration of the proper actions by the breath test technician.
The evidence shows that prior to the formal review hearing in this case, the Petitioner requested, and received, a subpoena for Officer Dinkins. Officer Dinkins is the breath test operator who completed the affidavit alleging that the Petitioner refused a breath test, thereby triggering the license suspension. Officer Dinkins was lawfully served with the subpoena to appear at the formal review hearing scheduled for this case on August 3, 2017. Officer Dinkins failed to appear or to request a continuance.
Prior to July 2013, when the arresting officer or breath test operator failed to appear, the only remedy was enforcement in the circuit court as with any other witness. By amending this section in this manner, the legislature clearly recognized that these witnesses were the most significant to the issues before the hearing officer; that being the lawfulness of the arrest, the reasonableness of the request under implied consent; and either an unlawful breath or blood test result, or a refusal to submit. There is no reasonable basis to differentiate between refusal and breath test cases.
Basic rules of statutory construction mandate that a subsection of a statute must be considered in its entirety when interpreting the language of the individual sentences. Roberts v. State, 685 So. 2d 1277 (Fla. 1996) [22 Fla. L. Weekly S5a]; Calhoun, Dreggors & Assoc. v. Volusia Cty, 26 So. 3d 624 (Fla. 5th DCA 2009) [35 Fla. L. Weekly D77a]; Richardson v. Showell Farms, 734 So. 2d 590 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1500b]. “When analyzing a statute, courts look to legislative intent and to determine such intent, the language and plain meaning of the statute must be examined first. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009) [34 Fla. L. Weekly S449a].
When the statutory language is clear, courts may not explore legislative history nor apply canons of statutory construction. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).” [30 Fla. L. Weekly S143a] Ellsworth v. State, 89 So. 3d. 1076 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1364b]. In the case at bar, the plain language of the statute makes no distinction between hearings where a driver has submitted to a breath, blood or urine test or where they have refused such test. When the legislature detailed that the suspension shall be invalidated based on a breath technician’s failure to appear they could have very well made the distinction between breath tests and refusal, but they did not. See Fla. Carry, Inc. v. Univ. of Fla., 180 So. 3d 137, 145-146 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D2432c]. As a result, the hearing officer erred in denying the Petitioner’s request to invalidate.
Lawfulness of Detention and Arrest
In order to detain a citizen for purposes of conducting a criminal investigation, the officer must have reasonable suspicion that a crime is occurring. Terry v. Ohio, 391 U.S. 1 (1968). Reasonable suspicion has been described as something that is more than a mere hunch. Wallace v. State, 8 So. 3d 492 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D925b].
Signs of impairment leading up to the detention in this case were scarce. Typically in a DUI case, an officer observes erratic driving coupled with real indicators of impairment such as stumbling, incoherent sentences, or fumbling through documents. Here, the driving pattern observed was a u-turn made after the light turned green and without interfering with any traffic. Although an infraction did occur (making a u-turn where not permitted), nothing about the turn or the subsequent driving pattern indicated impairment. To the contrary, Trp. Healy testified that the u-turn was the only driving pattern he noticed and that after turning on the blue lights she responded to the blue lights in a timely manner and made a right hand turn safely to stop. The video bears this out as well.
Post stop observations included an allegation that Petitioner had bloodshot, watery eyes, a flushed face, slurred speech, and an odor of an alcoholic beverage. Although Trp. Healy said he detected slurred speech, the video contradicts that assertion, especially the officer’s claim that it was the “entire time.”
The DVD reflects a coherent, clear speech pattern. In stating so, this Court is not re-weighing the evidence, but merely commenting on the contents of the video which clearly contradicts the allegations of the officer. In Wiggins, the high court found the circuit court’s review of the DUI DVD on appeal to be permissible in finding that the officer’s claim (as well as the hearing officer’s findings) of an erratic driving pattern was contradicted by the DVD. “Evidence that is confirmed untruthful or nonexistent is not competent, substantial evidence.” Id.
The remaining observations leading up to the detention were merely signs of alcohol consumption, not impairment. The officer conceded that he did not know why her face was flushed or why her eyes were red. Additionally, the officer also stated the obvious, that is one cannot determine if someone’s normal faculties are impaired by the odor of an alcoholic beverage. These are all observations of possible alcohol consumption, not impairment.
Furthermore, the video belies the officer’s allegation that Petitioner put her foot down during the one leg stand. The video shows that Petitioner never once put her foot down during this exercise.
Additionally, Petitioner’s performance on the other exercises refutes any claims that she struggled or looked impaired in any way. As a result, probable cause for the arrest was lacking as well. The contradicted testimony of the trooper is not sufficient to amount to competent, substantial evidence.
It is, therefore
ORDERED AND ADJUDGED that:
1. The Petition for Certiorari is hereby GRANTED and the Order of License Suspension entered on August 7, 2017 is hereby QUASHED.
2. The Department of Highway Safety and Motor Vehicles shall remove the administrative suspension from the Petitioner’s driving record, and shall immediately reinstate the Petitioner’s driving privilege if she is otherwise eligible.
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