Petition for Writ
of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety
and Motor Vehicles: DRIVER’S LICENSES
– denial of early reinstatement of driver license following revocation for
second DUI conviction conformed to the essential requirements of law – Petitioner
admitted that he had driven a vehicle within the previous 12-month period
in violation of Fla. Stat. 322.271 – Petitioner’s due process rights were
not violated by the hearing officer communicating with Petitioner’s references
outside of his presence. Pope v.
Dept. of Highway Safety and Motor Vehicles, No. 02-8678-CI-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
MARTIN A. POPE,
vs. Appeal No.02-8678-CI-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Response, and the Reply. Upon consideration of the same, the Court finds that the Amended Petition must be denied as set forth below.
The Petitioner, Martin A. Pope (Pope), seeks review of the Final Order,
entered October 2, 2002, in which the hearing officer for the Respondent,
Department of Highway Safety and Motor Vehicles (Department), denied Pope
early reinstatement of his driver license.
In reviewing the Department’s order, this Court must determine: (1)
whether procedural due process had been accorded, (2) whether the essential
requirements of law had been observed, and (3) whether the administrative
findings and judgment were supported by competent substantial evidence.
See Vichich v. Department of Highway Safety and Motor Vehicles,
799 So.2d 1069, 1073 (
Pope’s driver license was revoked for 5 years following his second DUI conviction. Pursuant to Florida Statutes, § 322.271(2)(b), Pope applied for early reinstatement of his driver license, or hardship license, stating that he needed to be able to drive to work to pay his child support obligation. As part of the application process, Pope provided four references. The hearing officer contacted the references following Pope’s hearing. As provided in the hearing officer’s Investigation Report, one reference, Jane Jackson, stated that Pope had driven “her around one month ago.” The hearing officer denied Pope’s application for early reinstatement stating that the investigation revealed that Pope had driven as recently as August 24, 2002.
In his Petition, Pope admits that he drove on August 24, 2002. However, Pope argues that it was necessary for him to drive on this date, as he was the only passenger in the vehicle when Ms. Jackson had a medical emergency. Pope argues that the Department’s actions departed from the essential requirements of law and denied Pope due process as the hearing officer communicated with Ms. Jackson outside of Pope’s presence, Ms. Jackson’s statement was not under oath, and Pope did not have the opportunity to cross-examine Ms. Jackson. Pope also argues that the Department should have considered the “necessity defense” and applied a “balancing test” in determining whether to grant Pope’s application.
The Court finds that it must reject
Pope’s arguments. First, the “necessity
defense” has been recognized in
Since Pope sought early reinstatement following his second DUI conviction within 5 years, the Department was required to ensure that Pope had not driven for the previous 12 months prior to reinstatement. See Fla. Stat. § 322.271(2)(b)(providing, in part, that “the department shall require such persons upon reinstatement to have not driven and to have been drug free for at least 12 months immediately prior to such reinstatement”). Under the undisputed facts of this case, the hearing officer was required by statute to deny Pope’s application. See e.g. Department of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024 (Fla. 2d DCA 1999)(holding that the Department acted reasonably in requiring the applicant for a hardship license to be alcohol-free for five years as part of being “drug-free,” even though the statute does not specifically require an applicant to be alcohol-free).
Additionally, it is incumbent upon
a petitioner seeking review of administrative action to include a transcript
of the hearing in his or her appendix. See
Cunningham v. Unemployment Appeals
Commission, 834 So.2d 336 (
Lastly, the Court observes that Pope’s argument that the Department’s denial of a hardship license to him is “unconscionable” disregards Pope’s driving record that includes seven previous convictions, five previous suspensions and two previous revocations. See e.g. Lite v. State, 617 So.2d 1058, 1060 (Fla. 1993)(explaining the driving is a privilege, and the privilege can be taken away or encumbered as a means of meeting a legitimate legislative goal). Accordingly, it is therefore,
ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is denied.
ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Martin A. Pope
John T. Allen, Jr., Esquire
Heather Rose Cramer, Assist. General Counsel
Bureau of Driver Improvement