YUDELMIS A. LOREDO

v.

STATE OF FLORIDA, DEPT OF HWY SAFETY AND MOTOR VEHICLES

Page 1 of 11 NOT FINAL UNTIL DISPOSITION

OF TIMELY-FILED MOTION FOR

REHEARING OR CLARIFICATION

IN THE CIRCUIT COURT

OF THE ELEVENTH JUDICIAL

CIRCUIT IN AND FOR MIAMI-

DADE COUNTY, FLORIDA

APPELLATE DIVISION

CASE NO. 2021-64-AP-01

L.T. CASE NO.

L630-961-73-367-0

YUDELMIS A. LOREDO,

Petitioner,

v. FLORIDA DEPARTMENT OF HIGHWAY SAFETY, Respondent. _____________________________/

OPINION

Opinion filed: January 26, 2023 On Petition for Writ of Certiorari from The Florida Department of Highway Safety and Motor Vehicles Notice of Cancellation of Driver’s License ROSS AMSEL RABEN NASCIMENTO, PLLC and Joseph E. Nascimento, Esq., for Yudelmis A. Loredo, Petitioner. Filing # 165494952 E-Filed 01/26/2023 09:13:28 When the Petitioner got out of his car, he looked “dazed and confused.” He was swaying “side to side and front to back.” He had bloodshot, watery eyes and a strong odor of alcoholic beverage coming from his mouth. He refused to perform roadside sobriety [*3] Page 3 of 11 exercises and was arrested. Officer Smith, who had been called to administer DUI testing, stated in the DUI testing and Implied Consent forms that the Petitioner refused to blow into the breathalyzer and refused to sign the Implied Consent form. The Petitioner testified that while driving, he passed by police officers who had stopped another car on the road. He testified that he swerved to avoid the officers standing by the stopped vehicle. To rebut the evidence that he was staggering, Mr. Loredo testified that he has a physical impairment that affects his gait and denied that he was impaired the night he was arrested. He testified that the video taken while he was in the police sally port and while he was under observation showed that he did not sway, stumble, or fall. The Petitioner claimed that he did not refuse to sign the Implied Consent, nor did he refuse to give a breath sample. He admitted that when asked to give a sample, he asked the duty officer, “If I blow, will you let me go?” He explained that he was joking. Officer Smith, the DUI testing witness, appeared pursuant to subpoena to testify at the September 29, 2021 hearing but had not seen the video footage depicting the Petitioner in the police station. [*4] Page 4 of 11 The hearing officer granted the Petitioner’s motion for continuance to give Officer Smith the opportunity to view the video footage. At a second hearing on October 20, 2021, Officer Smith failed to appear. The hearing officer stated that he would hold the order for two days to give the officer the opportunity to show just cause for failure to appear. If the officer showed just cause, the hearing would be continued. If not, the hearing officer offered the Petitioner a ten-day period within which to enforce the subpoena and give notice that the subpoena had been enforced. The Petitioner failed to take any further steps. This Court’s scope of review of an administrative decision is limited to “whether the administrative agency accorded the parties procedural due process, whether it observed the essential requirements of law, and whether the agency’s findings and judgments are supported by competent substantial evidence.” Department of Highway Safety and Motor Vehicles v. Cochran, 798 So. 2d 761, 762 (Fla. 5th DCA 2001), citing Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000); Haines City Community Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995). [*5] Page 5 of 11 The Petitioner makes four arguments. First, the Petitioner argues that the stop of his vehicle was unlawful. Second, the Petitioner argues that his arrest is not supported by competent, substantial evidence. Third, the Petitioner argues that there was no evidence that the Petitioner was read the Implied Consent form. Fourth, the petitioner argues that it was error to sustain his suspension when Officer Smith failed to appear at the continuation of the review hearing. Reasonable Suspicion to Stop the Petitioner’s Vehicle The Petitioner argues that the officer’s observations of his vehicle straddling a single lane does not constitute reasonable suspicion for a vehicle stop. We treat this as an argument that the hearing officer departed from the essential requirements of law in finding reasonable suspicion for the stop. We find no such departure, however, because the Petitioner’s factual premise for his argument is inaccurate. The evidence presented of the Petitioner’s driving pattern was far more egregious than simply failing to maintain a single lane.

The officer stopped the Petitioner for careless driving, after he swerved to avoid crashing into the rear of a stopped patrol vehicle. [*6] Page 6 of 11 Then, after the officer engaged pursuit, the officer observed the Petitioner straddling two lanes and unable to maintain a single lane. There was ample evidence in the record to support the conclusion that there was reasonable suspicion for the stop.

Even without the testimony that the Petitioner almost hit a parked patrol vehicle, weaving within a single lane supports reasonable suspicion to stop a car. See Roberts v. State, 732 So. 2d 1127 (Fla. 4th DCA 1999). So does crossing the white line on the right side of the road several times within a mile, even when there is no indication that other vehicles were affected by the driving pattern. Yanes v. State, 877 So. 2d 25, 26 (Fla. 5th DCA 2004). We conclude that the hearing officer did not depart from the essential requirements of law. Arrest for DUI Supported by Competent, Substantial Evidence The Petitioner argues that his arrest for DUI was unsupported by competent, substantial evidence. We disagree. The record is replete with competent evidence establishing the elements of a DUI. The hearing officer may rely not only upon the testimony and evidence presented but also upon documentary evidence submitted [*7] Page 7 of 11 by law enforcement, including the contents of a crash report which is deemed self-authenticating. See § 322.2615, Fla. Stat. (2021); Rule 15A-6.013(2), Fla. Admin. Code. The Petitioner was observed to be swaying and staggering, with bloodshot eyes and slurred speech. He stepped outside of his car looking “dazed and confused.” The officer smelled a strong odor of an alcoholic beverage. The Petitioner was driving carelessly, almost colliding with the rear of a patrol car. At the hearing, he testified that he has a disability which causes him to stagger and affects his gait. He then claimed however that the video footage shows that while he was under observation, he did not stagger or fall. Apparently, his natural condition affecting his gait is intermittent. The test for competent substantial evidence is not whether there is competing evidence supporting a contrary conclusion for the decision maker. The test is whether there exists any competent substantial evidence to support the decision maker’s conclusions, and any evidence which would support a contrary conclusion is irrelevant. See Dusseau v. Metro. Dade Cty. Bd. of Cty. Commrs., 794 So. 2d 1270, 1276 (Fla. 2001). In other words, we do not re-weigh the [*8] Page 8 of 11 evidence.

The Petitioner cites Wiggins v. Fla. Dept. of Hwy. Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017) for the principle that a circuit court in its review capacity may reject an officer’s testimony as competent, substantial evidence if video footage directly contradicts such testimony. Wiggins is inapplicable. There was nothing in the video taken of the Petitioner in the police station that directly refuted Officer Alzate’s observations of his impairment -- his flushed face, slurred speech, staggering, looking “dazed and confused,” driving pattern and strong smell of an alcoholic beverage. We find that the hearing officer’s conclusions were supported by competent, substantial evidence. Competent Substantial Evidence that Petitioner Refused to Sign the Implied Consent Form The Petitioner next claims that there is no evidence to refute his testimony that he was never asked to sign the implied consent form, and therefore, the hearing officer’s conclusion that he refused to sign is unsupported. Again, he is incorrect. The DUI paperwork signed by the testing officer states that the Petitioner refused to sign. This is competent, substantial evidence. See § 322.2615, Fla. Stat. [*9] Page 9 of 11 No Departure from the Essential Requirements of Law for Failure of Witness to Appear The Petitioner’s last argument is that the order sustaining his license suspension should be quashed because Officer Smith failed to appear for the continuation of the hearing on October 20, 2021. We treat this as an argument that the hearing officer departed from the essential requirements of law.

Petitioner argues that under section 322.2615(11), Florida Statutes, if the breath testing technician fails to appear pursuant to subpoena, the Department is required to invalidate the suspension. The statute provides as follows: 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.

First, it should be noted that the officer did appear at the duly noticed suspension hearing held on September 29, 2021. The officer [*10] Page 10 of 11 was not questioned, however, by the Petitioner’s counsel, because the Petitioner wanted the officer to view the video evidence. The hearing officer granted the Petitioner’s request to continue the hearing. Thus, there is no violation of the statute because Petitioner had every opportunity to question the officer about the implied consent and refusal, but opted instead to request a continuance.

Second, Section 322.2615(11) of the DUI statute states, “the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.” (emphasis added) Here, the DUI testing officer did not administer or analyze a breath test. The Petitioner refused to submit to a breath test. The statute is therefore inapplicable. See Muchhala v. Fla. Dept. of Hwy. Safety and Motor Vehicles, 324 So. 3d 62 (Fla. 1st DCA 2021), reh'g denied (Aug. 12, 2021). Third, since Officer Smith was merely a witness and not a witness who administered a breath test, Petitioner failed to avail himself of the statutory remedy and failed to avail himself of the opportunity offered by the hearing officer to file a notice of seeking enforcement of the subpoena with the hearing officer within 10 days [*11] Page 11 of 11 of the second hearing. Section 322.2615(6)(c), Florida Statutes states that “[t]he failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension.” A party seeking enforcement of a subpoena “may seek enforcement of a subpoena . . . by filing a petition for enforcement in the circuit court.” After obtaining the remedy of a continuance, the Petitioner could have enforced the subpoena, but did not. We thus find that the hearing officer observed the essential requirements of law in upholding the license suspension. Finding no error, the Petition for Writ of Certiorari is denied. WALSH, TRAWICK AND SANTOVENIA, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*12] Copies Furnished to: [email protected] [email protected] [email protected] [email protected]