vs.                                                                                                        Appeal No. 00-1409-CI-88A





            This cause came before the Court on the Petition For Writ Of Certiorari, the Response and the Reply.  Upon consideration of the same, the Court finds that the Petitioner has the following issues in his Petition.

            1.  The primary issue raised in the Petition For Writ Of Certiorari is whether the Petitioner was accorded procedural due process when the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (“Department”), entered an Order Of License Revocation, Suspension, Or Cancellation before the administrative appeal process was complete.   Petitioner further challenges whether the Department’s Order conforms to the essential requirements of law and is supported by competent substantial evidence. 

            2.  After a review of the record, the Court finds the Department’s Order conforms to the essential requirements of law and is supported by competent substantial evidence.  Further, the Court finds that the Department satisfied all procedural due process requirements.  Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

            3.  The record shows that, following a fourth conviction for DUI, the Petitioner sought and was granted reinstatement of his driving privilege on a restricted basis.  As a condition of the restricted driver’s license, the Petitioner was required to enroll in and comply with the terms of a DUI Special Supervision Services Program (“DUI program”).  The Petitioner subsequently enrolled in a DUI program with the Pinellas Chapter of the National Safety Council (“Safety Council”).

            4.  Upon enrolling in the DUI program, Petitioner signed a Statement of Abstinence that required the Petitioner to abstain from any use of illegal drugs.  The Petitioner also signed a Special Supervision Services Information Sheet, acknowledging that he had been advised of and understood various procedures and conditions of his participation in the DUI program, as set forth by the Department.  Specifically, the Information Sheet states that if any terms of the Statement of Abstinence are violated, “the DUI Special Supervision Services is required to recommend to the DHSMV, Division of Driver’s License, that my restricted driver license be cancelled for violation of the program regulations.”  Further, cancellation may result “prior to completion of the appellate process.” 

            5.  The Petitioner was referred for a random drug test on December 30, 1999, the results of which were positive for marijuana. The Petitioner was sent a letter, dated January 14, 2000, notifying the Petitioner of the test results and explaining that the Safety Council would recommend cancellation of the Petitioner’s restricted driver’s license to the Department.  Thereafter, the Department permanently revoked the Petitioner’s restricted driving privilege on January 27, 2000.  The Petitioner timely followed the prescribed procedure for appealing the recommendation, and on February 9, 2000, a neighboring DUI program, DUI Counterattack, conducted the appeal hearing.  The Petitioner was present for the appeal hearing and presented sworn affidavits that stated the Petitioner had unknowingly ingested a brownie containing marijuana on December 17, 1999.  DUI Counterattack reviewed this information and the facts of the Petitioner’s case and informed the Petitioner, by letter dated February 28, 2000, that DUI Counterattack supported the action taken by the Safety Council.

            6.  The Petitioner asserts that he was denied procedural due process by not having the appeal hearing prior to the Department entering it’s Order Of License Revocation, Suspension, Or Cancellation.  However, as stated above, the Information Sheet signed by the Petitioner provides that cancellation of a driving privilege may result prior to the completion of the appellate process.  Additionally, the Order of revocation is authorized by Florida Statutes, § 322.271 (1999), and by the Florida Administrative Code, Rule 15A-10.031, which both the Petitioner and the Respondent cite to as being applicable to the present case. 

            7.  Florida Statutes § 322.271, states that if a person fails to comply with the required DUI program supervision, the “program shall report the failure to the department, and the department shall cancel such person’s driving privilege.”  Rule 15A-10.031 provides that “the DUI program shall not delay notification to the Department of its termination recommendation pending such appeal.”  Therefore, the Petitioner was not denied procedural due process by the Safety Council’s immediate notification to the Department of the Petitioner’s DUI program violation or by the Department’s subsequent entry of the Order revoking the Petitioner’s driving privilege before the administrative appeal process was complete. 

            8.  The Petitioner was able to proceed with his appeal and meet face to face with the Clinical Supervisor of DUI Counterattack.  The Clinical Supervisor, together with the clinical staffing committee at DUI Counterattack, reviewed all the written documentation and decided to uphold the Safety Council’s recommendation to the Department to cancel the Petitioner’s driving privilege.  This decision was supported by competent substantial evidence. The Petitioner violated the terms of the DUI program when he tested positive for marijuana.  The Petitioner did not request to have the sample re-tested or contest the accuracy of the test results.  Rather, the Petitioner desired that both DUI programs excuse the test results due to his assertion that he unknowingly ingested marijuana.  However, the Petitioner was granted a restricted driver’s license, in the Department’s discretion, as a “legislative and administrative grace” following four DUI convictions and his driving privilege was conditioned upon the absolute adherence to certain guidelines, which included the prohibition of any use of illegal drugs.  Shorthill v. Gloria Cooksey, Chief Bureau of Driver Improvement, Case No. 95-5666, Final Order Denying Petitioner For Writ Of Certiorari And Dismissing Case (Fla. 9th Cir. Ct. 1995). 

            Therefore, as the record supports the conclusion reached, this Court will not substitute its judgment for that of DUI Counterattack or the Department.   Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692 (Fla. 5th DCA 1994); Department of Highway Safety and Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995).

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 21st day of July 2000.




Circuit Judge, Appellate Division


Copies Furnished To:

Charles R. Silvers, Esquire

25- 56th Street South

St. Petersburg, FL  33707

Attorney for Petitioner

Heather Rose Cramer, Esquire

Assistant General Counsel

Florida Dept. of Highway Safety & Motor Vehicles

2330 South Congress Avenue, Suite 2G

West Palm Beach, FL  33406

Attorney for Respondent

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610

Staff Attorney, Appellate Division