09-002140PL Criminal Justice Standards And Training Commission vs. Markeith L. Daniels Status: Closed Recommended Order on Friday, August 21, 2009.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent was driving while impaired.

Case No. 09-2140PL

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS RECOMMENDED ORDER ) )

AND TRAINING COMMISSION, )

Petitioner, )

)

vs. MARKEITH L. DANIELS, )

)

Respondent. )

)

)

)

On July 6, 2009, a duly-noticed hearing was held in

Apalachicola, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge appointed by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Assistant General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Markeith Daniels, pro se

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent committed

the acts alleged in the Administrative Complaint and if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On August 6, 2008, the Criminal Justice Standards Training

Commission of the Department of Law Enforcement (Petitioner or

the Commission) filed an Administrative Complaint against

Respondent, charging him with violating Section 943.1395(7),

Florida Statutes (2007), by driving or being in physical control

of a vehicle within the State of Florida while under the

influence of alcoholic beverages to the extent that his normal

faculties were impaired, or with a blood or breath alcohol level

of .08 or above. Respondent disputed the allegations of the

Administrative Complaint in an undated Election of Rights form

that did not include Respondent's name and address. On April 22,

2009, the matter was forwarded to the Division of Administrative

Hearings for the assignment of an administrative law judge.

The Initial Order was addressed to Respondent at the only

address provided by the Commission and was returned to the

Division as undeliverable. Because no hearing could be noticed

without a proper address for Respondent, an Order to Show Cause

was issued May 5, 2009, directing the Commission to provide a

usable address or show cause why jurisdiction should not be

relinquished back to the Agency. The Commission responded with

an updated address for Respondent, and on June 5, 2009, a Notice

of Hearing issued scheduling the case for July 6, 2009.

The matter proceeded as scheduled. At hearing, Petitioner

presented the testimony of Lieutenant Thomas Webb and Patrick

Murphy, and Petitioner's Exhibits 1-3 were admitted into

evidence. The Respondent testified on his own behalf and

submitted no exhibits.

The Transcript of the proceedings was filed with the

Division on July 20, 2009, and the Petitioner's Proposed

Recommended Order was submitted July 31, 2009. Respondent did

not choose to submit a proposed recommended order. All

references to the Florida Statutes are to the 2007 codification,

unless otherwise indicated.

FINDINGS OF FACT

1. Respondent, Markeith Daniels (Respondent or Daniels), is

a correctional officer certified by the Criminal Justice

Standards and Training Commission, having been issued certificate

number 254286.

2. At the time of the events giving rise to these

proceedings, Respondent was employed by the Florida Department of

Corrections as a correctional officer assigned to the Dade

Correctional Institution.

3. On or about November 2, 2007, then-Deputy (now

Lieutenant) Thomas Webb stopped Respondent in Apalachicola for an

improper start of the vehicle he was driving. After approaching

Respondent's car, Lt. Webb could smell alcohol on his breath.

Lt. Webb asked if Respondent had been drinking, and Respondent

indicated he had had a few beers. Lt. Webb asked Respondent to

step out of the car and perform selected field sobriety tests.

4. Lt. Webb testified that, based upon his training and

experience, Respondent was under the influence of alcohol. He

failed the field sobriety tests because he did not wait for

complete directions to be given before starting the tests, and

did not follow directions once given. For example, on the "one-

leg stand" test, he did not count out loud as instructed, began

counting at 4 and at the end of what was to be 30 seconds,

Respondent had only counted to 22.

5. Daniels' vehicle was searched. Lt. Webb found two

bottles of Verdi Spumante, an alcoholic beverage, in the car.

One bottle was unopened while the other was open and empty.

Lt. Webb also found two cans of cold, Natural Lite beer in the

back seat. Respondent claimed that the beer had been taken from

a refrigerator at approximately 9:30 p.m., and that he had given

several beers from the twelve-pack to a friend.

6. Daniels was placed under arrest and transported to the

Franklin County Jail, where his breath was tested for alcohol

content.

7. Protocols for breath alcohol testing require two samples

to be given and tested. The first breath sample given by

Respondent registered a reading of .121 at 4:28 a.m. The machine

provides a two-minute break between breath sample attempts, and

this two-minute window is recorded on the breath alcohol test

affidavit as "air blanks," at 4:29 and 4:30. From the air blank

recorded at 4:30, Respondent had three minutes to provide an

additional sample. After three minutes, no sample had been

provided, and Lt. Webb pressed the "refusal" button.

8. Respondent would have been able to see the results from

the first breath sample before being asked to give the second

one.

9. The criminal charges against Daniels were dismissed for

reasons that are not clearly identified in this record.

CONCLUSIONS OF LAW

10. 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), Florida

Statutes (2008).

11. This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to discipline Respondent's

certification as a correctional officer. Petitioner bears the

burden of proof to demonstrate the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Sterne & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

12. Clear and convincing evidence:

[R]equires 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

13. The Administrative Complaint contains the following

allegations:

2. On or about November 2, 2007, the

Respondent, Markeith L Daniels, did

unlawfully drive or was in actual physical

control of a vehicle within this state 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 or breath alcohol level of .08 or

above.

3. The actions of the Respondent did violate

the provisions of Section 316.193 or any

lesser included offenses, Section

943.1395(7), Florida Statutes, and Rule 11B-

27.0011(4)b, Florida Administrative Code, in

that Respondent 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.

14. Section 943.1395(7), Florida Statutes, 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:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) 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.

(d) Successful completion by the

officer of any basic recruit, advanced,

or career development training or such

retraining deemed appropriate by the

commission.

(e) 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.

15. Florida Administrative Code Rule 11B-27.0011(4)

provides:

(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:

(a) The perpetration by an officer of an act

that would constitute any felony offense,

whether criminally prosecuted or not.

(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 . . . .

16. Section 316.193, Florida Statutes, provides in

pertinent part:

1) 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:

(a) 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;

(b) The person has a blood-alcohol level of

0.08 or more grams of alcohol per 100

milliliters of blood; or

(c) The person has a breath-alcohol level of

0.08 or more grams of alcohol per 210 liters

of breath.

17. The Department has demonstrated by clear and convincing

evidence that Respondent was under the influence of alcohol to

the extent that his normal faculties were impaired. Respondent

was driving a car when stopped by Lt. Webb. He had the smell of

alcohol on his breath and admitted he had consumed a "few beers."

He was unable to follow the simple directions given in the field

sobriety tests, and the one sample of breath alcohol content he

provided was .121, well above the legal indication of impairment.

This one result does not rise to the level of a presumption of

impairment, but when taken together with the other evidence

presented, the evidence supports the conclusion that Respondent

was impaired. The fact that he was not criminally convicted of

violating Section 316.103 is irrelevant, inasmuch as the rule

definition of failing to maintain good moral character

specifically indicates that no prosecution is required. Compare

Criminal Justice Standards and Training Commission v. Tena Grant ,

Case No. 05-4458 (DOAH April 4, 2006; Final Order May 10, 2006).

18. The Commission has established disciplinary guidelines,

as required by Section 943.1395(7), Florida Statutes. Florida

Administrative Code Rule 11B-27.005(b)10. provides:

(5) When the Commission finds that a

certified officer has committed an act that

violates Section 943.13(7), F.S., the

Commission shall issue a final order imposing

penalties within the ranges recommended in

the following disciplinary guidelines:

* * *

(b) For the perpetration by the officer of an

act that would constitute any of the

misdemeanor offenses, pursuant to paragraph

11B-27.0011(4)(b), F.A.C., but where there

was not a violation of Section 943.13(4),

F.S., the action of the Commission shall be

to impose a penalty ranging from probation of

certification to suspension of certification.

Specific violations and penalties that shall

be imposed, absent aggravating or mitigating

circumstances, include the following:

* * *

10. Driving or boating under the influence

second DUI Offense (316.193 and 327.35,

F.S.): Probation with substance abuse

counseling and prospective

suspension to revocation.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding that Markeith Daniels

has violated Section 943.13(7), Florida Statutes, and that

Respondent's license be placed on probation for a period of one

year, with terms to be determined by the Commission.

DONE AND ENTERED this 21st day of August, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2009.

COPIES FURNISHED:

Sharon Saxler, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Markeith L. Daniels

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

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.