FLORIDA DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
vs.
Case No. 15-3122PL
JAMES H. ROGERS,
Respondent.
On August 21, 2015, Administrative Law Judge Lisa Shearer Nelson conducted an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2015), in Jasper, Florida.
Has Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2012), by
On December 15, 2014, the Florida Department of Law Enforcement (Petitioner or Department) filed an Amended Administrative Complaint against Respondent, James H. Rogers, charging him with failure to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), as well as Florida Administrative Code Rule 11B-27.0011(4)(b). Respondent filed an Election of Rights form in which he disputed the allegations in the Amended Administrative Complaint and requested a disputed-fact hearing. On June 1, 2015, the Department forwarded the case to the Division of Administrative Hearings for assignment of an administrative law judge.
Originally, the case was scheduled for hearing on August 7, 2015. At Petitioner’s request, the case was continued and reset for August 21, 2015, and proceeded as rescheduled. Donald Whitaker, Christopher Kelch, and Jason Fletcher testified for the Department and Petitioner’s Exhibits A-K were admitted into evidence. Respondent presented no evidence at hearing but was granted leave to e-file some letters to be submitted in mitigation of penalty. However, to date, no letters have been submitted in this case.
The Transcript of the hearing was filed with the Division on September 28, 2015. At the request of the parties, the time for filing proposed recommended orders was extended to
October 23, 2015. Both parties timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order. All references to Florida Statutes are to the 2015 codification unless otherwise specified.
Respondent, James H. Rogers, is a corrections officer certified by the State of Florida Criminal Justice Standards and Training Commission. Mr. Rogers was issued correctional certification number 41789 on September 6, 1989.
Respondent was driving a vehicle in Lowndes County, Georgia, early in the morning on March 23, 2013, when he failed to stop at a red light when making a right-hand turn.
Georgia State Trooper (then Cadet) Jason Fletcher and Corporal Chris Kelch were on road patrol in the area and observed Respondent’s failure to come to a complete stop. They made the decision to pull Mr. Rogers over for the observed traffic offense.
Trooper Fletcher was a new cadet at the time of the stop. In fact, March 23, 2013, was during the first month of his field training, and he was accompanied by a field training
officer, Corporal Kelch. At the time of the stop, Trooper Fletcher had approximately two years of experience as a police officer and sheriff’s deputy before attending trooper school. Trooper school is 32 weeks long. Trooper Fletcher had completed his classroom portion of training and was completing his field training.
Corporal Kelch graduated from Trooper School in August 2007, and acted as Trooper Fletcher’s field training officer. Both men have training in traffic-related issues and field sobriety and roadside evaluation. Corporal Kelch is a certified breath-test operator for the State of Georgia.
Fletcher and Kelch stopped Respondent at approximately 2:34 a.m. When they pulled Respondent over, his car was on the entrance ramp to Interstate 75. There is a limited shoulder on the road and the ramp has a downward slope. Trooper Fletcher got out of his patrol car and approached the driver’s side of Respondent’s car. Corporal Kelch also got out and was at the rear passenger side of Roger’s vehicle.
When Trooper Fletcher made contact with Respondent, he immediately smelled the odor of alcohol on Respondent’s breath and noticed that his speech was somewhat slurred. While Respondent has a decidedly “southern drawl,” not all of the speech pattern heard on the audio portion of the dash-cam video of the encounter can be attributed to his accent. When Trooper
Fletcher asked Mr. Rogers to exit his car, he was a little unsteady on his feet. Corporal Kelch also observed that his eyes were bloodshot and watery. Upon Respondent’s exit from the car, Corporal Kelch went over to shut the car door for safety reasons and confirmed that the car had no other occupants.
Trooper Fletcher asked Respondent if he had been drinking, and Mr. Rogers responded by naming the locations he had visited that night. He admitted to having about one and one-half drinks.
There are multiple field sobriety tests available to patrol officers when investigating a person for impaired driving. Some of those require a subject to walk and turn, or to stand on one leg. However, given the uneven terrain where the traffic stop was made, both officers deemed it unadvisable to use those field sobriety tests, because they are meant to be performed on a level surface. Moving to another location to conduct the field sobriety tests was not an option because it would require either leaving Mr. Rogers’ car unattended with no patrol lights to alert other drivers that it was on the entrance ramp, or allowing Mr. Rogers, a possibly impaired driver, to get back behind the wheel. Trooper Fletcher attempted to perform a horizontal gaze nystagmus test, but Mr. Rogers was unable or unwilling to follow the directions given to him, so the test was not completed.
Trooper Fletcher continued to talk to Mr. Rogers during the stop, and eventually Respondent admitted that driving was not a good decision, and that he had consumed more alcohol than he had originally indicated, including both beer and mixed liquor. Although he admitted drinking both beer and mixed drinks, he could not recall what type of mixed drinks he had consumed.
Based upon Respondent’s original failure to stop at the traffic light, the smell of alcohol on his breath, his slurred speech and unsteady gait, his inability to follow directions, and his admission to drinking several alcoholic drinks, both officers believed Mr. Rogers was impaired. As a result, Trooper Fletcher placed him under arrest for driving under the influence (DUI). Respondent was handcuffed and Trooper Fletcher read him the Georgia Implied Consent notice before placing him in the back of the patrol car.
Mr. Rogers remained in the patrol car with his hands cuffed behind his back while the officers inventoried his car and arranged for a tow truck to remove it from the interstate ramp. Trooper Fletcher then drove to the jail. While in the car, both men were able to observe Mr. Rogers through the rearview mirror and were able to hear any sounds that he might make. The first encounter with Mr. Rogers occurred at approximately 2:34 a.m., and a breath-alcohol test was
administered to him at approximately 3:51 a.m. The officers were able to observe Mr. Rogers for more than the required 20-minute waiting period before administering the test.
Respondent had no access to any alcoholic beverages from the time he was stopped until the alcohol breath test was administered. There was no evidence he tried to insert anything in his mouth, or that he tried to vomit or regurgitate anything that he previously ingested. Trooper Fletcher and Corporal Kelch were able to observe him both in the patrol car and in the jail for more than 20 minutes leading up to the administration of a breath-alcohol test.
In order to have a valid sample, a person must blow a minimum of 1.1 liters of deep lung air into the tube of the machine. An average male can usually exhale approximately 3.1 liters of air. Mr. Rogers’ first sample was invalid because he did not provide sufficient volume for a successful test. There was no indication that Respondent had a medical problem that would prevent him from providing enough air for the test. Ultimately, Mr. Rogers was able to provide two valid breath samples at approximately 3:51 a.m.
A breath-alcohol test consists of two breath samples.
The breath-alcohol test administered to Mr. Rogers had readings for breath-alcohol levels of .125 and .124g/ml.
The intoxilyzer instrument was working properly at the time of Respondent’s breath samples. It had been inspected by Donald Whitaker, the area supervisor responsible for the inspection and maintenance of breath-testing instruments in Lowndes County, the day before. It remained in good working order at its next scheduled inspection.
Mr. Rogers was charged with failure to obey a traffic control device and driving under the influence.
In his answers to requests for admissions, Respondent admitted that on or about November 20, 2007, he was adjudicated guilty for the offense of driving under the influence by the County Court for the Third Judicial District in and for Hamilton County, Florida. He also admitted receiving a Letter of Acknowledgement from the Criminal Justice Standards and Training Commission regarding a charge of Pled Guilty to Driving Under the Influence in CJSTC Case No. 25499. No evidence was submitted to establish the meaning or significance of a “Letter
of Acknowledgement.”
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1).
This is a proceeding to discipline Respondent's certification as a corrections officer, in which Petitioner is
seeking revocation. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Amended 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).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In
re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this
standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse
Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989 (Fla. 1st DCA
1991).
The factual allegations in the Amended Administrative Complaint are as follows:
2. On or about March 23, 2013, the Respondent, James H. Rogers, did unlawfully drive or was in physical control of a vehicle within the state of Georgia while under the influence of alcoholic beverages, any chemical substance set forth in
s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties were impaired; or with a blood alcohol level of
.08 or above, having been previously been convicted under Florida Statute 316.193 or having been previously convicted for any substantially similar alcohol-related or drug related traffic offense outside this state, for which he was adjudicated guilty.
Based upon these factual allegations, the Amended Administrative Complaint charges Respondent with violating section 316.193, Florida Statutes, or any lesser included offenses, section 943.1395(7), and rule 11B-27.0011(4)(b), “in that Respondent has failed to maintain the qualifications established in section 943.13(7), Florida Statutes, which require that a correctional officer in the State of Florida have good moral character.”
In a disciplinary proceeding, the statutes and rules in effect at the time of the alleged actions giving rise to the charges against Respondent control. Childers v. Dep’t of Envtl.
Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). The applicable
statutory provisions as they relate to this case have not changed. Rule 11B-27.0011, however, has been amended.
Section 943.1395(7) and (8) provides:
(7) Upon a finding by the commission that a certified officer has 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:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
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.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
(8)(a) The commission shall, by rule, adopt disciplinary guidelines and procedures to administer the penalties provided in subsections (6) and (7). The commission may, by rule, prescribe penalties for certain offenses. The commission shall, by rule, set forth aggravating and mitigating circumstances to be considered when imposing the penalties provided in subsection (7). (b)1. The disciplinary guidelines and prescribed penalties must be based upon the severity of specific offenses. The guidelines must provide reasonable and meaningful notice to officers and to the public of penalties that may be imposed for
prohibited conduct. The penalties must be consistently applied by the commission.
Similarly, section 943.13(7) provides that a law enforcement officer or corrections officer must have good moral character as determined by a background investigation under procedures established by the Commission. The Commission has defined the failure to maintain “good moral character” for purposes of section 943.1395(7) in rule 11B-27.0011(4). At the time of the alleged offense, rule 11B-27.0011(4) provided in pertinent part:
(4) For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
* * *
(b) Except as otherwise provided in Section 943.13(4), F.S., a plea of guilty or a verdict of guilty after a criminal trial for any of the following misdemeanor or criminal offenses, notwithstanding any suspension of sentence or withholding of adjudication, or the perpetration by an officer of an act that would constitute any of the following misdemeanor or criminal offenses whether criminally prosecuted or not:
1. Sections 316.193 (Emphasis
added).
Section 316.193, Florida Statutes (2012), provided:
316.193 Driving under the influence; penalties.—
A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
Petitioner has proven the allegations in the Administrative Complaint by clear and convincing evidence.
Respondent admitted his prior DUI in his answers to requests for admissions. The answers to the requests for admissions were already filed on the docket in this case. Given this admission, no evidence regarding the prior event was necessary, and it was not necessary to offer the answers to the requests for admissions into evidence. Deland v. Miller,
608 So. 2d 121, 122 (Fla. 5th DCA 1992)(“Admissions in the pleadings are accepted as facts without the necessity of further proof . . . . Moreover, these uncontested facts do not have to be introduced into evidence at trial.”); Lutsch v. Smith,
397 So. 2d 337, 340-341 (Fla. 1st DCA 1981)(“an admission obtained in a response to admit does not have to be introduced into evidence.”).
The evidence at hearing established that on or about March 23, 2013, Respondent operated his motor vehicle while under the influence of alcohol. Respondent failed to obey a traffic requirement that he stop before turning at a red light. Once stopped, he smelled of alcohol, had watery eyes, slurred speech, and a mildly unsteady gait. His inability to follow directions and his admission that he consumed several alcoholic beverages of different types reinforced the reasonable belief that he was under the influence of alcohol. Further, his breath-alcohol level was well above the specified limit.
There is also persuasive evidence that Trooper Fletcher and Corporal Kelch observed Respondent for longer than the required 20-minute observation period prior to administering the breath-alcohol test. Continuous face-to-face observation for 20 minutes is not required. Kaiser v. State, 609 So. 2d 768 (Fla. 2d DCA 1992); Klink v. State, 533 S.E.2d 92 (Ga. 2000).
Trooper Fletcher read Georgia’s Implied Consent notice to Mr. Rogers following his arrest, meeting the requirements of Georgia Code 40-5-67.1(b).
Driving under the influence, as charged in this case, regardless of whether Respondent was actually convicted or found
guilty of the crime charged, is a failure to maintain good moral character in violation of section 943.1395(7), as defined in rule 11B-27.0011(4)(b).
The Criminal Justice Standards and Training Commission has adopted disciplinary guidelines that identify a range of penalties applicable for violations of rule 11B-27.0011. The version of rule 11B-27.005 in effect at the time of this offense requires a penalty of prospective suspension to revocation.
Fla. Admin. Code R. 11B-27.005(b)10.
The rule also includes aggravating and mitigating factors to consider when determining penalty, especially should some deviation from the guideline range be contemplated. Among the aggravating factors is whether the officer has received a Letter of Acknowledgment within the last three years. In this case, the letter received by Respondent was in November 2008, approximately seven years ago, which means it cannot be used as an aggravating factor. Mitigating factors include the length of time the officer has been certified.
Neither party presented a basis for deviating from a penalty within the guideline range. However, a penalty less than the maximum is warranted. Respondent has been a corrections officer for over 25 years. His first DUI was in 2007, nearly eight years ago. While there is never an excuse for getting behind the wheel of a vehicle while impaired, there
is no indication that Respondent has ever been disciplined for any other offense. Respondent has spent a lifetime as a corrections officer. While significant punishment is appropriate, something less than revocation is appropriate to allow Respondent to learn from his error in judgment, get any assistance he may need, and return to work as a contributing member of society.
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 finding that Respondent violated section 943.1395(7) as defined in rule 11B- 27.0011(4)(b). It is further recommended that the Commission suspend Respondent’s certification for a period of one year, followed by three years of probation, subject to such terms and conditions as the Commission may in its discretion deem appropriate.
DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015.
Jeffrey Phillip Dambly, Esquire Florida Department of Law Enforcement Post Office Box 1489
Thomas Kirwan, General Counsel Florida Department of Law Enforcement Post Office Box 1489
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.
