CHRISTOPHER OLIVERI

v.

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

BEFORE MCDONALD, HIGBEE, and MUNYON, J.J.

PER CURIAM.

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI

Petitioner, Christopher Oliveri (“Oliveri”) seeks certiorari review of Respondent, the Department of Highway Safety and Motor Vehicles’ (“Department”) final order sustaining the suspension of his driver’s license for driving with an unlawful breath alcohol level. This Court has jurisdiction pursuant to section 322.2615(13), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(3). Findings of Fact As gathered from the Hearing Officer’s findings of fact from the testimony, related documents, and breath test video presented at the formal review hearing on February 19, 2013, March 22 and 26, 2013, the facts were as follows: On January 12, 2013, at approximately 2:15 a.m., Corporal Robert Lees with the Orange County Sheriff’s Office was traveling the posted speed limit of 45 mph on Alafaya Trail when he observed a vehicle pass his patrol car at a higher rate of speed. Corporal Lees paced the vehicle at 63 mph in the 45 mph zone. Corporal Lees noted that the Florida tag, GZL5G, expired September 2012, but had a registration sticker expiring September 2013. Corporal Lees initiated a traffic stop when the vehicle came to an abrupt stop at a red light. The vehicle then pulled into a parking lot and stopped. Corporal Lees then made contact with the driver, identified as Oliveri, who was surprised to hear he was speeding. Oliveri produced a valid registration for Florida tag, GRB3K, a different tag than the tag on the vehicle. Oliveri told the officer that he was coming from the Knight's Library bar where he had been drinking beer, but had been drinking water for the last hour. While speaking to Oliveri, Corporal Lees observed that his eyes were red, bloodshot, and glassy; his speech was slurred; he smelled heavily of alcoholic beverages; he started chewing gum; he fumbled with his wallet and after dropping the wallet, he needed help finding it between his feet. At that point, Corporal Lees called Deputy Scott Danjou to conduct an impaired driver investigation. Deputy Danjou arrived at approximately 2:19 a.m. and spoke with Corporal Lees, who advised him of his observations thus far. Deputy Danjou then met with Oliveri and immediately smelled a strong odor of an alcoholic beverage coming from his breath. Deputy Danjou noted that Oliver's eyes were bloodshot, red and glassy, he was chewing gum rapidly, and portions of his speech were slurred.

At that point, Deputy Danjou asked Oliveri if he would perform the field sobriety exercises. Oliveri said he didn't want to do anything unless he could get a blood draw. Deputy Danjou explained to Oliveri that he was not able to get a blood draw there and that based on the totality of the circumstances, his refusal could be used against him in a criminal case. Deputy Danjou asked Oliveri again if he would submit to the exercises and Oliveri said no. Based on the observations thus far, Deputy Danjou determined that Oliveri was driving while under the influence to the extent his normal faculties were impaired and placed him under arrest.

During transport to the Orange County Breath Test Center, Deputy Danjou could smell the strong odor of an alcoholic beverage within his patrol car. Once at the Breath Test Center, the 20 minute observation was conducted and the Implied Consent Warnings were read. Oliveri then asked for an attorney. In response, Deputy Danjou read the Third District Court of Appeal ruling informing Oliveri that he was not entitled to meet with counsel prior to the administration of the breath test.¹ Oliveri asked what if he wanted a blood test. Deputy Danjou advised Oliveri that he would have to do that on his own accord and time, and pay for it. Oliveri stated that he preferred a blood test and wasn't sure what his rights were. Deputy Danjou then re-read the Third District’s ruling and asked if he would take the breath test. Oliveri again answered that he preferred a blood test.

2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.

§ 322.2615(7)(a), Fla. Stat. (2013). Arguments

In the Petition for Writ of Certiorari, Oliveri argues that:¹) The license suspension should have been aside based on the failure to provide him with an independent blood test or assistance upon his request; 2) The Hearing Officer deprived him of procedural due process of law by failing to issue subpoenas for Florida Department of Law Enforcement (“FDLE”) personnel, Roger Skipper, Patrick Murphy, Jennifer Keegan, and Laura Barfield to appear along with the documents requested in the subpoena duces tecum; 3) The breath test results were not properly approved per FDLE Rule 11D-8.003 because they were obtained by use of an unapproved breath testing machine and provided scientifically unreliable results; 4) The breath test results were inadmissible due to the failure of the record to contain the most recent Department inspection; 5) The Intoxilyzer 8000 machine was improperly evaluated for approval in violation of FDLE Rule 11D-8.003; and 6) The Intoxilzyer 8000 machine was not kept in a secure location; was accessible to individuals not authorized by FDLE to have access to the machine, was not properly reinspected in violation of FDLE Rules 11D-8.004 and 11D-8.007, and the hearing officer improperly prevented evidence in this regard. Analysis Argument¹ addressing the request for an independent blood test At the formal review hearing, Oliveri’s counsel moved to set aside the license suspension based on the failure to provide him with an independent blood test or assistance upon his request. The Hearing Officer denied the motion based on the on the record evidence including Oliveri's testimony. In support of his argument both at the hearing and in this Petition, Oliveri cited Unruh v. State, 669 So. 2d 242 (Fla. 1996). In Unruh, the Florida Supreme Court reviewed the certified question as to whether the State was required to take affirmative action to assist a person in custody for DUI in obtaining an independent test for blood alcohol when it is requested pursuant to section 316.1932(1)(f)3, Florida Statutes. The Court answered the question in the affirmative holding that law enforcement must render reasonable assistance in helping a DUI arrestee obtain an independent blood test upon request. Further, the Court explained that in some cases, minimal aid such as providing access to a telephone and directory will be sufficient; in others, more active assistance such as transporting the arrestee to a blood testing facility will be necessary. Lastly, the Court explained that whether the assistance provided is “reasonable” and thus sufficient to satisfy law enforcement‘s duty under the statute, will depend on the circumstances of each case. In the instant case, the record evidence specifically relating to this argument included the testimony of Deputy Danjou, BTO Harden, and Oliveri and revealed:¹) Deputy Danjou and BTO Harden advised Oliveri of the procedures to obtain the blood test that could be done at the jail; 2) Per Oliveri’s testimony, he used the telephone at the jail; and 3) Also per Oliveri’s testimony, he did not tell anyone at the jail that he wanted a blood test; thus, he did not pursue the blood test; and while he may have discussed it with the nurse, he could not recall the conversation. As the Court explained in Unruh, a finding as whether law enforcement provided reasonable assistance sufficient under the statute depends on the circumstances of each case. In the instant case, the Hearing Officer as the finder of fact was responsible for weighing the evidence including the credibility and demeanor of Oliveri and the witnesses in determining whether law enforcement’s assistance was reasonable. See 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) (explaining that in this type of administrative hearing, the hearing officer is not required to believe the testimony of any witness, even if unrebutted); see also City of Deland v. Benline Process Color Company, 493 So. 2d 26, 28 (Fla. 5th DCA 1986) (holding that the weight and credibility of the evidence before the administrative agency cannot be reevaluated by the reviewing court). Accordingly, this Court finds that based on the record evidence including the testimony of Deputy Danjou, BTO Harden, and Oliveri, the Hearing Officer followed the statutory requirements in denying Oliveri’s motion by making the finding that law enforcement did not fail to provide reasonable assistance to Oliveri to obtain a blood test. Arguments II, III, IV, & V - addressing the administration, inspection, approval, and evaluation of the breath testing machine

At the formal review hearing held on March 26, 2013, Oliveri’s counsel attempted to introduce documents related to the Intoxilyzer 8000 machine including the 2002 and 2005 evaluation reports; 2002 conforming products list; transcripts of the testimony of FDLE Inspector Roger Skipper from a formal review hearing in other cases in 2006; a letter dated in 2006 from FDLE Custodian of Records Laura Barfield about Intoxilyzer software version 8100.26; numerous breath test results obtained from various Intoxilyzer 8000 machines using software 8100.26 and 8100.27 with testing dates from 2006 and 2007; FDLE data from 2011-2012 pertaining to breath volume in the machine; and subpoenas for FDLE personnel, Roger Skipper, Laura Barfield, Jennifer Keegan, and Patrick Murphy that the Hearing Officer did not issue. In Klinker v. Dep’t of Highway Safety & Motor Vehicles, 20 Fla. L. Weekly Supp. 1a (Fla. 9th Cir. Ct. 2012) and Morrow v. Dep’t of Highway Safety & Motor Vehicles, 19 Fla. L. Weekly Supp. 704a (Fla. 9th Cir. Ct. 2012), this Court addressed identical arguments and denied the petitions seeking writs of certiorari. Further, second tier certiorari review of the Klinker decision was sought in Klinker v. Dep’t of Highway Safety & Motor Vehicles, 118 So. 3d 835 (Fla. 5th DCA 2013), review denied at 123 So. 3d 558 (Table) (Fla. Sept. 3, 2013), where the Fifth District denied the petition of writ of certiorari on the merits rejecting Klinker’s arguments. Accordingly, for the reasons stated in Klinker and Morrow, this Court finds that Oliveri was not deprived of due process and the Hearing Officer properly admitted the breath test results. Argument VI - claiming that the Intoxilyzer 8000 was not kept in a secure location, Was accessible to unauthorized persons, and was not properly reinspected

Oliveri argues that only individuals with a valid FDLE permit are authorized to have access to the Intoxilyzer 8000. He claims that the machine was transported to and from Tallahassee by common carrier, and therefore it was kept in locations that were not secure and individuals who did not possess a valid FDLE permit had access to the machine in violation of Rule 11D-8.007. Oliveri also argues that a Department inspection is required in addition to an agency inspection anytime the machine is returned from an authorized repair facility. He alleges that the machine was used to administer his breath test after it was returned from FDLE but the Department inspection was not performed after access by unauthorized individuals. Oliveri argues that the breath test results were inadmissible due to these alleged violations. Section 316.1934(5), Florida Statutes (2013), states that the breath alcohol test affidavit is presumptive proof of the results of an authorized test to determine alcohol content of the breath if the affidavit contains all the statutorily required information prescribed in that subsection. See Gurry v. Dep’t of Highway Safety, 902 So. 2d 881, 884 (Fla. 5th DCA 2005). Once the Department meets its burden, the contesting party must demonstrate that the Department failed to substantially comply with the administrative rules concerning approval of the breath testing machine. Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So. 2d 657, 659 (Fla. 5th DCA 2001). In this case, the Department introduced the breath alcohol test affidavit which contains all the statutorily required information and a breath alcohol level above 0.08. Therefore, the affidavit is presumptive proof of results of an authorized test. Oliveri attempted to demonstrate that the Department failed to substantially comply with administrative rules by speculating that the machine was accessed by unauthorized persons, not located in a secure location, and not inspected by the Department after access by unauthorized persons. Florida Administrative Code Rule 11D-8.007 states:

(1) Evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder. This rule does not prohibit agencies from sending an instrument to an authorized repair facility. Only authorized repair facilities are authorized to remove the top cover of an Intoxilyzer 8000 evidentiary breath test instrument. (Emphasis added)

(2) The instrument will be located in a secured environment which limits access to authorized persons described in subsection (1), and will be kept clean and dry. All breath test facilities, equipment and supplies are subject to inspection by the Department.

Florida Administrative Code Rule 11D-8.004(2) states:

Registered breath test instruments shall be inspected by the Department at least once each calendar year, and must be accessible to the Department for inspection. Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use. The inspection validates the instrument's approval for evidentiary use.

Florida Administrative Code Rule 11D-8.006(3) states:

Whenever an instrument is taken out of evidentiary use, the agency shall conduct an agency inspection. The agency shall also conduct an agency inspection prior to returning an instrument to evidentiary use.

Oliveri’s breath test was conducted on January 12, 2013. The agency inspection report and the breath alcohol test affidavit that lists the last agency inspection date as January 10, 2013 were admitted into evidence at the hearing. Therefore, the machine used to conduct Oliveri’s breath test was inspected in accordance with the rules prior to the administration of his breath test. Based on the foregoing, this Court finds that Olivieri has failed to demonstrate that the Department did not substantially comply with the administrative rules. Therefore, the Hearing Officer properly admitted the breath test results. Conclusion Based on the foregoing, procedural due process was followed, the Hearing Officer followed the essential requirements of the law, and there was competent substantial evidence to support the Hearing Officer’s findings and decision. “As 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). Accordingly, it is hereby ORDERED AND ADJUDGED that Petitioner, Christopher Oliveri’s Petition for Writ of Certiorari is DENIED. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, this 13th day of January, 2014.

/S/

ROGER J. MCDONALD

Presiding Circuit Judge

HIGBEE and MUNYON, J.J., concur. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished to: Stuart I. Hyman, Esquire, Stuart I. Hyman, P.A., 1520 East Amelia St., Orlando, Florida 32803, [email protected] and Richard M. Coln, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, P.O. Box 570066, Orlando, Florida 32857, [email protected], [email protected] on this 13th day of January, 2014.

/S/

Judicial Assistant