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 (Fla. 6th Cir. App. Ct. Jan. 22, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

MARTIN A. POPE,

                        Petitioner,

 

vs.                                                                                               Appeal No.02-8678-CI-88A

                                                                                                   UCN522002CA008678XXCICI

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department)(citation omitted). 

            Pope’s driver license was revoked for 5 years following his second DUI conviction.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 Florida but only in cases where a defendant has been charged with a criminal act.  See Jenks v. State of Florida, 582 So.2d 676 (Fla. 1st DCA 1991)(approving of the necessity defense doctrine within the criminal law context).  Second, the statute does not require a specific “balancing test.”  Rather, in reviewing a petition for early reinstatement, the Department must investigate the person’s qualification, fitness, and need to drive.  See Fla. Stat. § 322.271(1)(b).  The review process is informal and the statute does not require the hearing officer to adhere to rules of evidence applicable in a formal review.  See e.g. Fla. Admin. Code § 15A-6.013 (providing, in part, that in a formal review oral evidence shall be taken only on oath or affirmation and the driver shall have the right to cross-examine opposing witnesses)(emphasis added).  Additionally, depending on the type of offense resulting in the license revocation, cancellation, or suspension, there are certain conditions that must be met before the Department can grant reinstatement.

            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 (Fla. 5th DCA 2003)(holding that without a transcript, the appellant could not establish error).  Despite Pope’s argument to the contrary, the Department was not required to provide a transcript of the administrative hearing to Pope.  Rather, it was Pope’s duty to request a copy of the taped proceedings and to have it transcribed.

            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.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of January 2004.

 

 

           

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Martin A. Pope

4200 42nd Avenue North

St. Petersburg, FL  33714

 

John T. Allen, Jr., Esquire

5929 Bayview Circle South

Gulfport, FL  33757

 

Heather Rose Cramer, Assist. General Counsel

6801 Lake Worth Road, #230

Lake Worth, FL  33467

 

Bureau of Driver Improvement

2814 East Hillsborough Avenue

Tampa, FL  33610