Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – formal review hearing – subpoenaed witnesses – transcript – where this is no transcript of the hearing petitioner cannot demonstrate error – hearing officer, as the trier of fact, was in the best position to determine “just cause” for excusing subpoenaed officer.  Petition denied. Huynh v. Dept. of Highway Safety and Motor Vehicles, No. 03-5052AP-88B (Fla. 6th Cir. App. Ct. Feb. 23, 2004).









vs.                                                                                               Appeal No. 03-5052AP-88B










            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Do An Huynh (Huynh), seeks review of the Final Order of License Suspension, entered September 2, 2003, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Huynh’s driving privilege was properly suspended for a period of six months for driving under the influence (DUI).  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).

            Huynh does not dispute the underlying facts.  Accordingly, as set forth in the Final Order, on May 31, 2003, at approximately 2:49 a.m., Deputy Gerretz, of the Pinellas County Sheriff’s Office, observed Huynh’s vehicle weaving from the right side to the left side of his lane of travel.  Huynh’s vehicle then made a wide right turn, turning into the center lane.  Deputy Gerretz then conducted a traffic stop.  Upon making contact with Huynh, Deputy Gerretz noticed several signs of impairment, including that Huynh had bloodshot watery eyes, slurred speech, and the odor of alcohol.  Huynh failed the subsequent field sobriety tests and was arrested for DUI.  The results of the breath tests showed an unlawful breath alcohol level of .101g/210L and .098g/210L.

            Huynh requested a formal review hearing and also requested the Department to issue a subpoena for Deputy Gerretz.  The hearing was scheduled for July 3, 2003, and the subpoena for Deputy Gerretz was issued and available on June 24, 2003.  On June 27, 2003, service of the subpoena was attempted but Deputy Gerretz refused to accept service since his appearance date was less than seven days away.1 At Huynh’s request, the hearing was continued to July 29, 2003, and Deputy Gerretz was served with his subpoena on July 21, 2003.  On July 28, 2003, Deputy Gerretz notified the Department that he had a scheduling conflict and would be unable to attend the hearing.  The matter was therefore continued to August 22, 2003.  However, on the day of the hearing, Deputy Gerretz, through his supervisor, once again notified the Department that he would be unable to attend the hearing as he was on vacation and preparing for his wedding the following day.  Huynh went forward with his formal review hearing.

            The sole argument raised in the Petition is that the Department’s Final Order is contrary to the essential requirements of law in that the hearing was conducted in a manner that deprived Huynh of procedural due process since Huyhn had to chose between a timely hearing and the ability to cross-examine evidence presented by the Department.  As set forth in Florida Statutes, § 322.2615(6)(b), and the Florida Administrative Code, Rules 15A-6.012 and 15A-6.013, a driver has a right to subpoena a law enforcement officer to cross-examine evidence presented against the driver.  The right to subpoena and confront witnesses in formal review proceedings conducted by the Department is further recognized by case law.  See e.g. Scritchfield v. Department of Highway Safety and Motor Vehicles, 648 So.2d 1246 (Fla. 2d DCA 1995); Department of Highway Safety and Motor Vehicles v. Marshall, 848 So.2d 482 (Fla. 5th DCA 2003). 

            However, the Court finds that under the facts of this case the Petition must be denied.  First, it is not possible for the Court to determine what objections and/or arguments were presented to the hearing officer regarding the absence of Deputy Gerretz as there is no transcript of the hearing.  See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)(stating that in appellate proceedings the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error); see also Scritchfield, 648 So.2d at 1247 (finding that without an objection to the absence of the arresting deputy at suspension hearing, the argument was waived).  The record only reflects, as set forth in the Final Order, that Huynh’s counsel made a motion to invalidate the license suspension because the arresting officer was twice excused from the formal review hearing.

            Second, Florida Administrative Code, Rule 15A-6.015(2), provides that the hearing officer can excuse a properly subpoenaed witness for “just cause,” which is defined as “extraordinary circumstances beyond control of the . . . witness.”2  Clearly, reasonable minds will differ as to what constitutes extraordinary circumstances beyond the control of a witness.  Although the Court may have reached a different conclusion as to whether preparation for a wedding is “just cause,” the hearing officer, as the trier of fact, was in the best position to make this determination.  See Department of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(finding that the circuit court committed error where it reweighed the evidence and substituted its judgment for that of the hearing officer); see also Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994)(same).  The Court finds that it cannot substitute its judgment for that of the hearing officer.  See id.  In reaching this decision, the Court finds no merit in the Respondent’s “invited error” argument. 

            Lastly, Huynh’s argument that he was denied compulsory process in the proceedings below must fail since Huynh does not contest the lawfulness of the traffic stop.  See Scritchfield, 648 So.2d at 1248 (finding that driver’s argument that he was deprived of the right of confrontation was without merit as the legality of the arrest was not contested).  Indeed, the Court notes that for the purpose of sustaining the license suspension, Deputy Gerretz’s presence was not required and the hearing officer could determine that there was probable cause to detain Huynh based on written documents generated at the time of his arrest without witnesses testifying on behalf of the Department.  See id. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

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




                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division


Copies furnished to:


Sean B. Kelley, Esquire

13620 49th Street North, Suite 201

Clearwater, FL  33762


Heather Rose Cramer, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467


Bureau of Driver Improvement

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762

1 See Fla. Admin. Code Rule 15A-6.012(3)(c)(providing that an employee need not accept service if the appearance date is less than seven days from the date of service).

2 Unlike criminal or civil trial court proceedings, there is no statutory or code provision to compel attendance of a properly subpoenaed witness.  See e.g. Fla. R. Civ. P. Rule 1.410(f); Fla. R. Crim. P. Rule 3.361(d).