STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ) ENFORCEMENT, CRIMINAL JUSTICE ) STANDARDS AND TRAINING )

COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 00-2781PL

)

STEVEN P. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Apopka, Florida, on September 14, 2000.

APPEARANCES

For Petitioner: Gabrielle Taylor

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent: Steven P. Williams, pro se

Post Office Box 2652 Apopka, Florida 32704

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of failing to maintain good moral character.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 10, 2000, Petitioner alleged that Respondent was a certified correctional officer who

unlawfully drove his vehicle while under the influence of alcoholic beverages or an unlawful chemical substance, so as to impair his normal faculties or cause a blood alcohol level of at least 0.08.

The Administrative Complaint alleges that Respondent failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes, violated Section 316.193, Florida Statutes, or lesser included offenses; Section 943.1395(6) or (7), Florida Statutes; or Rule 11B-27.0011(4)(b), Florida Administrative Code.

At the hearing, Petitioner called two witnesses and offered into evidence four exhibits. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted except Petitioner Exhibit 2, which was proffered.

The court reporter failed to file the transcript within the time required by contract or permitted by the Administrative Law Judge.

FINDINGS OF FACT

1. Petitioner certified Respondent as a correctional officer on September 23, 1988, and issued him certificate number 101535.

2. For an undisclosed period of time, Respondent has been employed as a correctional officer by the Orange County Correctional Department at the Orange County Jail on 33rd Street in Orlando.

3. About 10:17 PM on the evening of May 2, 1999, Respondent was operating his motor vehicle on Rock Springs Road in north Orange County. A deputy sheriff in a parked car noticed that the tag light on Respondent's vehicle was out. The deputy pursued Respondent's vehicle and, when they reached a safe place to turn off the highway, turned on her emergency lights and directed Respondent to pull over.

4. Respondent's operation of the vehicle did not disclose any impairment, although one time, during the relatively long period that the deputy trailed Respondent, his right rear tire of briefly left the narrow, poorly lighted road and traveled on the grass for a short distance.

5. Once the two vehicles were stopped, the deputy ordered Respondent out of his vehicle. At first Respondent did not respond, so the deputy ordered him a second time to get out of his vehicle. He promptly responded to the second order, and the deputy could not rule out that Respondent had not heard her first order.

6. As she approached Respondent, the deputy detected the smell of beer and noticed that Respondent had spilled beer on the right leg of his pants. His eyes were bloodshot and glassy.

   When he spoke, his speech was thick-tongued. Respondent swayed slightly from side to side as he stood talking to the deputy.

7. The deputy asked Respondent if he would undergo field sobriety tests. Respondent declined, but agreed to the deputy's request that he submit to an examination of his eyes.

8. The test that the deputy administered is the horizontal gaze nystagmus test (HGN), which detects involuntary jerking of the eyes that is indicative of intoxication. The tests that Respondent declined to perform were the walk and turn and one leg stand tests.

9. A subject taking the HGN may score a maximum of six points. The HGN consists of three parts, which are applied to each eye individually. Each of the three parts measures the smoothness of eye travel, as it tracks a moving pen, and the onset, if any, of involuntary jerkiness.

10. Respondent flunked all six parts of the HGN. Absent a physiological condition, failing all six parts is an indicator of intoxication. Respondent suffers from no such physiological condition that would cause him to fail the HGN while not intoxicated.

11. However, as discussed in the Conclusions of Law, failure to pass the HGN, in isolation, does not supply clear and convincing evidence of legal impairment. In this case, it is clear that Respondent had consumed beer, but the evidence is less than clear and convincing that he had consumed a sufficient amount of alcoholic beverages so as to become legally impaired.

12. Respondent testified candidly that he had a drinking problem during 1999. His marriage of 28 years had recently ended, and he was feeling alone. He became depressed and drank.

13. However, he has not had a drink since July 8, 1999. He attended Alcoholics Anonymous and, later, more individualized counseling.

14. Petitioner has failed to prove by clear and convincing evidence that Respondent's actions on May 2, 1999, constituted a failure to maintain good moral character.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

16. Section 943.13(7) requires that correctional officers maintain good moral character.

17. Section 943.1395(6) and (7) provides:

    
    

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

       1. The commission shall cause to be investigated any ground for revocation from the employing agency pursuant to s. 943.139 or from the Governor, and the commission may investigate verifiable complaints. Any investigation initiated by the commission pursuant to this section must be completed within 6 months after receipt of the completed report of the disciplinary or internal affairs investigation from the

          employing agency or Governor's office. A verifiable complaint shall be completed within 1 year after receipt of the complaint. An investigation shall be considered completed upon a finding by a probable cause panel of the commission. These time periods shall be tolled during the period of any criminal prosecution of the officer.

       2. The report of misconduct and all records or information provided to or developed by the commission during the course of an investigation conducted by the commission are exempt from the provisions of

          s. 119.07(1) and s. 24(a), Art. I of the State Constitution and, except as otherwise provided by law, such information shall be subject to public disclosure only after a determination as to probable cause has been made or until the investigation becomes inactive.

       3. When an officer's certification is revoked in any discipline, his or her certification in any other discipline shall simultaneously be revoked.

    2. 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:

       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.

18. Rule 11B-27.0011(4)(b) provides:

For the purposes of the 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) 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, 316.1935, 327.35,

414.39, 741.31, 784.011, 784.03, 784.047,

784.048, 784.05, 790.01, 790.10, 790.15,

790.27, 794.027, 796.07, 800.02, 800.03,

806.101, 806.13, 810.08, 812.014, 812.015,

812.14, 817.235, 817.49, 817.563, 817.565,

817.567, 827.04, 828.12, 831.30, 831.31,

832.05, 837.012, 837.05, 837.06, 839.20,

843.02, 843.03, 843.06, 843.085, 847.011,

856.021, 870.01, 893.13, 893.147, 914.22,

944.35, 944.37, and 944.39, F.S.

1. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

2. The court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), defined "clear and convincing evidence" as follows:

   We . . . hold that 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 explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such 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.

   
   

3. In a criminal action, HGN results, in the absence of confirmatory blood, breath, or urine, are inadmissible to trigger the presumption of impairment provided by Section 316.1934 and may not be used to establish a blood alcohol content of 0.08 or greater. Faires v. State, 711 So. 2d. 597 (Fla. 3d DCA 1998); Williams v. State, 710 So. 2d 24, 36 (Fla. 3d DCA), rev. denied, 725 So. 2d 1111 (Fla. 1998).

4. These cases acknowledge that the HGN is a reliable indicator of intoxication. The question is the weight to be assigned to the HGN results. In determining that the HGN results, alone, were insufficient to establish impairment, the Williams court reasoned that the Legislature had limited to blood or breath testing the means by which to establish a presumption that a person was driving while impaired. This conclusion followed the court's review of the available judicial and technical literature in determining that the reliability of the HGN is 80 to 90 percent, 710 So. 2d at 34, although even this degree of reliability may be attained by the HGN only when it is used in conjunction with standard National Highway Traffic Safety Administration tests. 710 So. 2d at 35 n.19.

5. Undoubtedly, Respondent had been drinking on the evening in question, but the initial issue is whether he was impaired, not whether he had consumed any alcoholic beverages.

   The HGN results, alone, do not establish impairment. Even the HGN results in conjunction with physical evidence of alcohol consumption, such as bloodshot eyes, spilled beer, and thick- tongued speech, do not establish impairment by clear and convincing evidence.

6. These findings eliminate the necessity for a discussion of the larger issue of whether, even if Petitioner had established impaired driving, Petitioner had proved by clear and convincing evidence that such an act or omission, in context, constituted a failure to maintain good moral character, especially in view of Respondent's subsequent correction of his problem with drinking.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 25th day of October, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2000.

COPIES FURNISHED:

A. Leon Lowry, II, Program Director Division of Criminal Justice

Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Gabrielle Taylor Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

Steven P. Williams Post Office Box 2652 Apopka, Florida 32704

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-002781PL

Orders for Case No: 00-002781PL