Legal Topics

Licensing — Driver’s license — Suspension — Refusal to submit to breath test — Lawfulness of arrest — Actual physical control of vehicle — Officer’s observation of car key on vehicle floorboard next to licensee’s feet was sufficient to establish officer’s observation of licensee’s control of vehicle — Petition for writ of certiorari is denied

Feb 13th, 2026 in by admin

Licensing — Driver’s license — Suspension — Refusal to submit to breath test — Lawfulness of arrest — Actual physical control of vehicle — Officer’s observation of car key on vehicle floorboard next to licensee’s feet was sufficient to establish officer’s observation of licensee’s control of vehicle — Petition for writ of certiorari is denied

WILLIAM FECKLEY, Petitioner, v. STATE OF FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Circuit Civil Division. Case No. 23-CA-016710. Division O. July 16, 2025. Counsel: Linsey Sims-Bohnenstiehl, Assistant General Counsel, DHSMV, for Respondent.ORDER DENYINGPETITION FOR WRIT OF CERTIORARI

(LAURA E. WARD, J.) THIS MATTER is before the court on Petitioner William Feckley’s Petition for Writ of Certiorari filed June 23, 2023, in the County Court, transferred on November 17, 2023, and received by the Circuit Civil Court on June 3, 2024. The petition is timely and this court has jurisdiction. § 322.31, Fla. Stat. Petitioner seeks review of the Department’s final order upholding the suspension of his driving privilege for his refusal to submit to a breath test to determine his breath alcohol level. Petitioner contends that the Department lacked the competent, substantial evidence necessary to find that Petitioner was lawfully arrested because there is nothing in the record to establish that Petitioner was in control of the key to the vehicle’s ignition, and thus insufficient evidence in the record to establish probable cause for a lawful DUI arrest. Having reviewed the petition, response, reply, appendix, and being otherwise fully advised, the court finds that the law enforcement officer’s observation of a “car key” on the floorboard next to Petitioner’s feet is sufficient to establish the officer’s observation of the Petitioner’s control of the vehicle. Accordingly, the petition is denied.

On April 21, 2023, Petitioner was arrested for DUI after Hillsborough County Sheriff’s Office (HCSO) Deputies Goff and Tracey observed Petitioner sleeping in the passenger seat of his vehicle in a convenience store parking lot. Petitioner does not contest that he displayed multiple signs of impairment when the deputies roused him. Petitioner refused to submit to a breath test after being read the implied consent warning and his license was suspended as a result. On May 22, 2023, there was a formal hearing to review the suspension.

The Court is limited to considering “whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). When a driver refuses to submit to a breath test, the hearing officer must consider:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

The court may not reweigh evidence. DHSMV v. Baird, 175 So. 3d 363, 365 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2160a] (citing DHSMV v. Porter, 791 So. 2d 32, 35 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1161a]). The officer wrote in the report that he observed “the keys to the vehicle” and testified as to that fact at the hearing. Petitioner is contesting the officer’s use of the words “keys to the vehicle” arguing that this was a conclusory assumption rather than a factual observation. Bare conclusory statements do not satisfy the competent substantial evidence requirement, but factual observations by law enforcement officers do. Petitioner acknowledges McMullin v. DHSMV, 28 Fla. L. Weekly Supp. 979a (Fla. 11th Cir. Ct. App. for Miami-Dade Co., 2020), where the court found that probable cause was established when the arresting officer observed a key fob in plain view, and argues that it is distinguishable from the present case because a key fob is sufficiently unique so as to justify the belief that it belongs to the vehicle. However, Deputy Tracey testified at the hearing and counsel for Petitioner had the opportunity to question him about his observation. Counsel asked “when you opened the front passenger side door you observed what kind — you said you saw keys between his feet located on the passenger side floorboard?” Deputy Tracey responded “[c]orrect, they keys to the vehicle were, yes, on the floorboard.” Counsel followed up “. . . did you assume they were they keys to the vehicle because they looked like car keys?” to which the deputy responded “[c]orrect.” The court finds that Deputy Tracey’s testimony to be competent, substantial evidence establishing the location of Petitioner’s car key prior to his arrest. The hearing officer therefore had competent, substantial evidence to find that Petitioner’s arrest was lawful.

It is therefore ORDERED that the Petition for Writ of Certiorari is DENIED.