STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,

Petitioner,

vs.

MICHAEL D. BEST,

Respondent.

/

Case No. 13-1218PL

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case before Jessica E. Varn, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on June 7, 2013, by video teleconference at sites in Sebastian and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Elissa R. Saavedra, Esquire

Shehla Milliron, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Adrienne D. Soule, Esquire

Florida Police Benevolent Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent, a certified correctional and probation officer, was guilty of driving under the influence (DUI) on a date certain, as Petitioner alleges; and, if so, whether (and what) discipline should be imposed against Respondent’s

certificate.

PRELIMINARY STATEMENT

The Criminal Justice Standards and Training Commission (Petitioner) filed an Administrative Complaint against Michael Best (Mr. Best) on December 4, 2012, alleging that Mr. Best had violated sections 943.1395(7) and 943.13(7), Florida Statutes (2012), and Florida Administrative Code Rule 11B-27.0011(4)(b). Mr. Best filed an Election of Rights form disputing the allegations and requesting a formal hearing. The case was referred to DOAH and set for hearing on June 7, 2013.

At the hearing, Petitioner presented the testimony of Deputy James Ooley, Deputy James Carter, and Jake Shanahan, an expert in the Intoxilyzer 8000 and in the area of alcohol testing procedures in Florida. Petitioner’s Exhibits B, C, D, E, F, G, H, I, and J were entered into evidence. Mr. Best testified on his own behalf; Respondent’s Exhibits 1 and 7 (Exhibit 7 is the same as Petitioner’s Exhibit J) were admitted into evidence.

A Transcript of the proceedings was filed with DOAH on June 19, 2013. Both parties submitted proposed recommended

orders, which were considered in preparation of this Recommended Order. Unless otherwise indicated, all citations to Florida Statutes are to the 2012 version.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the responsibility of certifying law enforcement officers and taking disciplinary action against them.

2. At all times material to this case, Mr. Best was certified by Petitioner as a correctional officer (certificate number 191403) and correctional probation officer (certificate number 233946).

3. In 2009, Mr. Best was disciplined by Petitioner for DUI.

   
   

4. On January 11, 2012, Mr. Best arrived at a friend’s home around 10:00 p.m. and drank three beers while chatting about football. He left a little after midnight to return home.

5. That same evening, Deputy James Ooley and Deputy John Carter, two deputies with the Indian River County Sheriff’s Office, were on road patrol. A few minutes after midnight, they observed Mr. Best’s car.

6. The deputies noticed that Mr. Best’s vehicle registration decal had expired, that Mr. Best’s car was swerving within its lane and almost hit a curb, and that Mr. Best stopped beyond where he should have stopped at a stop bar. At

   
   

   12:07 a.m., they stopped Mr. Best because of the expired decal and possible impairment.

7. Deputy Carter stayed in the patrol car while Deputy Ooley approached the car. Deputy Ooley noticed that Mr. Best’s eyes were bloodshot and glassy, his speech was slurred and mumbled, and he had trouble finding his driver’s license, despite the fact that it was in his wallet. Deputy Ooley also smelled alcohol on Mr. Best’s body and breath.

8. Deputy Ooley asked Mr. Best to perform field sobriety exercises. These tests are designed to be divided attention exercises, to see if the person’s normal faculties (such as walking and talking) are impaired.

9. During the field sobriety tests, Deputy Ooley verbally gave Mr. Best instructions and demonstrated each exercise for him. Directed to walk heel-to-toe on a straight line, Mr. Best stepped off the line a few times, and he turned incorrectly. While trying to stand on one leg, Mr. Best swayed, because he had trouble balancing, and put his foot down before being told to do so.

10. Deputy Ooley arrested Mr. Best for driving under the influence of alcohol, a violation of section 316.193, Florida Statutes. He based his decision on his observations of

    Mr. Best’s driving before he stopped him, his physical

    
    

    appearance, and the difficulties he had in performing the field sobriety exercises.

11. Mr. Best was handcuffed and placed in the patrol car, where he did not have any access to alcohol. He was brought to the local jail.

12. Video footage of the intake room shows that, at approximately 12:54 a.m., Deputies Ooley and Carter entered the intake room of the jail with Mr. Best. Deputy Carter entered an officer room which was about ten feet away from the seat in which Mr. Best was placed and had a clear view of Mr. Best. Deputy Ooley left Mr. Best’s presence at approximately 12:56 a.m. to gather paperwork and a blank DVD for the DUI breath test. Prior to leaving, he asked Deputy Carter to keep an eye on Mr. Best.

13. Deputy Ooley returned at 12:59 a.m. and started to fill out the DUI paperwork. He asked Mr. Best questions while he completed the paperwork.

14. Mr. Best consented to a breath test and was escorted to the intoxylizer room by Deputy Ooley. Deputy Ooley had to start the intoxylizer and input Mr. Best’s personal information before samples could be given. The intoxylizer data began recording at 1:13 a.m. Deputy Ooley is seen on the video footage giving verbal instructions on how to blow into the machine and giving a demonstration.

    
    

15. Mr. Best had difficulty providing a sample; repeatedly, he was unable to blow air for the required amount of time. His first valid sample was recorded at 1:20 a.m. and indicated a reading of .162 blood alcohol level, and the second required sample was recorded at 1:24 a.m. and gave a reading of .157 blood alcohol level. The legal limit is .08 of alcohol per 210 liters of breath.

16. Deputies Ooley and Carter were with Mr. Best from 12:18 a.m., when he was arrested. As of 12:54 a.m., when video footage shows them entering the intake room, Mr. Best was never alone. The Deputies collectively observed Mr. Best continuously for approximately an hour. They never observed Mr. Best ingest anything, or regurgitate during the entire process.

17. Deputy Ooley observed Mr. Best continually from 12:59 a.m. through 1:20 a.m., when the first valid sample was

    provided. He never saw Mr. Best ingest anything or regurgitate.

    
    

18. The intoxylizer was working properly and had been inspected by the Florida Department of Law Enforcement.

19. The deputies substantially complied with the requirements for breath tests set forth in Florida Administrative Code Rule 11D-8, which requires a 20-minute observation period before breath samples are taken.

20. The totality of the evidence, which includes Mr. Best’s driving pattern that evening, his appearance and speech, and the

    
    

    difficulty he had in performing the field sobriety tests, establishes that Mr. Best was driving while under the influence of alcohol.

21. The intoxylizer results provide additional evidence that Mr. Best was guilty of driving under the influence of

    alcohol.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

23. Petitioner bears the burden of proving that

    
    

    Mr. Best committed the violation alleged in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris

    v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

24. Section 943.13(7) provides that a law enforcement officer must “have good moral character” as determined by Petitioner.

25. Section 943.1395(7) provides as follows:

    
    

    Upon a finding by the commission that a certified officer had not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by

    s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

       
       

    2. Suspension of certification for a period not to exceed 2 years.

       
       

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

       
       

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

       
       

    5. Issuance of a reprimand.

    
    

26. In relevant part, rule 11B-27.0011(4)(b) defines “failure to maintain good moral character” to include the “perpetration” by a law enforcement officer of an act that would constitute a violation of section 316.193, whether or not the violation was prosecuted. Section 316.193 specifically prohibits DUI and sets forth related penalties.

27. The totality of the evidence established that Mr. Best is guilty of driving while under the influence of alcohol, in violation of section 316.193.

28. Accordingly, Petitioner has established that Mr. Best failed to maintain good moral character.

29. Rule 11B-27.005(5)(b) sets forth the range of penalties applicable to the facts of this case. Petitioner’s recommended

    
    

    penalty of permanent revocation of Mr. Best’s certifications is within the range set forth in the rule.

30. Since this incident was the second time Mr. Best was arrested for DUI, the penalty recommended by Petitioner is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order permanently revoking Mr. Best’s certifications.

DONE AND ENTERED this 31st day of July, 2013, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2013.

COPIES FURNISHED:

Elissa R. Saavedra, Esquire Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Adrienne D. Soule, Esquire Florida Police Benevolent

Association, Inc.

300 East Brevard Street Tallahassee, Florida 32301

Jennifer Cook Pritt, Program Director Division of Criminal Justice

Professionalism Services Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel Florida Department of

Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-001218PL

Orders for Case No: 13-001218PL