DEBRA MOREFIELD

v.

DHSMV

PER CURIAM.

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI Petitioner, Debra Morefield (“Morefield”), timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (“Department”) Final Order of License Suspension. Pursuant to section 322.2615, Florida Statutes, the order sustained the suspension of her driver’s license for refusing to submit to a breath, blood, or urine test. This Court has jurisdiction under section 322.2615(13), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(3). We dispense with oral argument. Fla. R. App. P. 9.320. Findings of Fact As gathered from the hearing officer’s findings, including the testimony from Officer Sharon Wagganer¹, Officer Shawn Meadows, and other witnesses along with the arrest affidavit, Morefield’s driving record, and other related documents provided at the formal review hearing held on December 12, 2011, the facts were as follows: On November 13, 2011 at approximately²:18 am, Officer Meadows with the Winter Park Police Department was dispatched to assist with a traffic crash. Upon arriving at the crash scene he met with Officer Wagganer who was the first officer on scene. Officer Wagganer advised Officer Meadows that the vehicle was traveling south on Lafayette Avenue in Winter Park when it left the roadway, hit a mailbox, and then continued over the grass and hit a fire hydrant. Witness Jay Rader (“Rader”) provided a sworn statement and testimony about his observations and interaction with Morefield. He informed Officer Wagganer that shortly after he heard the crash he looked out of his living room window and saw the vehicle on top of the fire hydrant. He continued to look out the window for roughly three minutes when he observed Morefield in the driver’s seat revving the engine. At that point Rader went outside, approached the vehicle, and noticed Morefield in the driver’s seat turning the vehicle’s engine and headlights on and off trying to reverse out with no success. Rader then spoke with Morefield and he thought she was intoxicated because she wasn’t making any sense. He asked her if she had realized what she had done and she stated that she didn’t know. Morefield then exited the vehicle and left the accident scene walking southbound on Lafayette Avenue. Officer Wagganer stopped Morefield who matched the description provided by Rader. Officer Wagganer then walked back with Morefield to the crash scene and conducted the crash investigation. Morefield

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer. 3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of¹ year or, in the case of a second or subsequent refusal, for a period of 18 months.

§ 322.2615(7)(b), Fla. Stat. (2011). Arguments

In the Petition for Writ of Certiorari, Morefield argues:¹) Officer Meadows illegally arrested her without an arrest warrant in violation of section 901.15, Florida Statutes;²) There was no competent substantial evidence in the record to establish probable cause that she was driving or in actual physical control of a vehicle that was operable; and 3) The evidence failed to establish that she willfully refused to submit to a breath test. Conversely, the Department argues:¹) Morefield’s administrative refusal suspension and review hearing adhered to the essential requirements of the law and²) Competent substantial evidence in the record supports the hearing officer’s decision affirming the suspension of her license for refusing to submit to the breath test. Analysis and Findings I. Morefield’s argument that Officer Meadows illegally arrested her without an arrest warrant in violation of section 901.15, Florida Statutes:

Morefield argues that her arrest was not lawful because neither Officer Wagganer nor Officer Meadows observed her driving or in actual physical control of the vehicle, but instead only relied upon the information provided by Rader. Morefield concludes that the arrest violates section 901.15(5), Florida Statutes (2011), that provides that a law enforcement officer may arrest a person without a warrant when: A violation of chapter 316 has been committed in the presence of the officer. Such an arrest may be made immediately or in fresh pursuit. Any law enforcement officer, upon receiving information relayed to him or her from a fellow officer stationed on the ground or in the air that a driver of a vehicle has violated chapter 316, may arrest the driver for violation of those laws when reasonable and proper identification of the vehicle and the violation has been communicated to the arresting officer. However, as the Department argues, a law enforcement officer is permitted to arrest the driver of a crashed vehicle who is suspected of driving under the influence pursuant to section 316.645, Florida Statutes (2011), as follows: A police officer who makes an investigation at the scene of a traffic crash may arrest any driver of a vehicle involved in the crash when, based upon personal investigation, the officer has reasonable and probable grounds to believe that the person has committed any offense under the provisions of this chapter, chapter 320, or chapter 322 in connection with the crash.

Further, Perry-Ellis v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 942a (Fla. 9th Cir. Ct. 2006) provides guidance with a similar factual scenario in that it involved a traffic crash that did not occur in the presence of law enforcement officers and the Court held that the officer’s investigation, including his personal observations of Perry-Ellis after the accident, constituted competent substantial evidence to find that she was driving the vehicle while under the influence. Accordingly, this Court finds that Morefield’s argument lacks merit. II. Morefield’s argument that there was no competent substantial evidence in the record to establish probable cause that she was driving or in actual physical control of a vehicle that was operable:

This Court finds that the hearing officer’s denial of Morefield’s motion was supported by competent substantial evidence including: 1) Rader’s testimony addressing his observations that no one exited the vehicle during the time he watched the vehicle and that the person, who he identified as Morefield, was alone and seated in the driver’s seat of the just-crashed vehicle revving the engine and turning the engine and headlights on and off several times; 2) The vehicle was owned by Morefield and her possessions were inside the vehicle; and 3) Sheehan did not return to the vehicle. Therefore, Rader’s testimony demonstrated that Morefield had control of the vehicle, that she had the keys to the vehicle (she was revving the engine and turning the engine and headlights on and off), and that the vehicle, while immobile once it was crashed onto the fire hydrant, was operational before the crash. As for Sheehan’s testimony that he was driving the vehicle when it crashed, the hearing officer addressed his testimony in her order and found that the preponderance of the evidence gave greater weight to the testimony of Rader and to the testimony and documents submitted by law enforcement. Accordingly, it is not this Court’s function to reweigh the evidence including assessing the credibility of the witnesses. Further, a hearing officer is not required to believe the testimony of any witness, even if unrebutted. Dep’t of Highway Safety & Motor Vehicles v. Luttrell, 983 So. 2d 1215, 1217 (Fla. 5th DCA 2008) citing Dep’t of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482 (Fla. 5th DCA 2003); Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So. 2d 371 (Fla. 5th DCA 1995); Rodriguez-Havlovic v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 536b (Fla. 9th Cir. Ct. 2006) (holding that the hearing officer was not required to believe the testimony of the licensee and bartender that licensee was driven away from bar by an unknown man who left her at the scene of the accident). Lastly, as the Department points out, there was no direct evidence, but there was circumstantial evidence that Morefield was driving the vehicle when it crashed. Specifically, Morefield was observed in the driver’s seat of the vehicle immediately after the crash, the vehicle belonged to her and contained her personal effects, and no other persons were observed in or near the vehicle on the night of her arrest. Again Perry-Ellis, as discussed above, is on point when addressing the issue of circumstantial evidence. In Perry-Ellis, the Court held that even without Perry-Ellis’ admission, the reasonable inferences from the facts and circumstances of the case were sufficient to place her in apparent control of her vehicle where: 1) The officer observed her walking around her car near the crash; 2) The vehicle was registered to her; 3) The vehicle was resting against a railroad crossing gate pole; 4) No other persons were present at the scene with actual or physical authority over the vehicle; and 5) The officer observed Perry-Ellis’ signs of impairment and her failure to perform the field sobriety exercises. See State v. Benyei, 508 So. 2d 1258, 1259 (Fla. 5th DCA 1987) (holding that, although the vehicle may have been inoperable at the time the officer arrived at the scene, the circumstantial evidence was sufficient for the jury to find that the defendant was driving while intoxicated when her car went off the highway onto a median). Accordingly, this Court finds that the hearing officer made a lawful determination that was supported by competent substantial evidence in rejecting Morefield’s argument. III. Morefield’s argument that the evidence failed to establish that she willfully refused to submit to a breath test:

At the formal review hearing, counsel brought a motion that the refusal affidavit was not properly prepared because there was contradictory evidence in the record as to whether the arrest preceded the Implied Consent Warning. The hearing officer denied the motion finding that the arrest affidavit clearly indicated that Morefield was placed under arrest, transported to the Winter Park Police Department, observed for 38 minutes and then read the Implied Consent Warnings. Counsel also brought a motion that it was improper to claim that a breath sample was not provided based upon the breath test result affidavit. The hearing officer also denied that motion ruling that the arrest affidavit stated that Morefield was given every opportunity to provide the breath samples but refused, therefore no breath sample was provided. On appeal, Morefield argues that the Department failed to meet its burden as required under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that she refused to submit to the breath test after being requested to do so by the law enforcement officer. Instead, Morefield argues that the Department improperly relied upon the unfettered discretion of Officer Meadows’ interpretation of the breath test affidavit.2 Upon review of the record, there was competent substantial evidence in support of the hearing officer’s finding that Morefield’s failure to provide two valid breath samples was properly construed by law enforcement as a refusal to submit to the breath-alcohol test. Pursuant to Rule 11D-8.002(12), Florida Administrative Code, refusal or failure to provide the required number of valid breath samples constitutes a refusal to submit to the breath test. Morefield could

/S/______________________ JENIFER M. DAVIS Circuit Court Judge

/S/________________________

/S/_______________________ JOHN MARSHALL KEST

LISA T. MUNYON Circuit Court Judge

Circuit Court Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail or hand delivery to Stuart I. Hyman, Esquire, Stuart I. Hyman, P.A., 1520 East Amelia Street, Orlando, FL 32803 and to Kimberly A. Gibbs, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, DHSMV-Legal Office, P.O. Box 570066, Orlando, FL 32857, on this 31st day of August, 2012.

/S/_______________________

Judicial Assistant