Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Ignition Interlock Device – Department Has the authority pursuant to Florida Statutes, § 316.193(2)(a)3, and Florida Administrative Code Rule 15A-9.004(1) to require a driver to install an ignition interlock device following a second DUI conviciotn  --Petition denied.  Boyce v. Dept. of Highway Safety and Motor Vehicles, No. 04-0016AP-88B (Fla. 6th Cir. App. Ct. Oct. 6, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

FRANCES HOWARD BOYCE,

                        Petitioner,

vs.                                                                                                Appeal No. 04-00016AP-88B

                                                                                                    UCN522004AP000016XXXXCV

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

BUREAU OF DRIVER IMPROVEMENT,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING MOTION FOR REHEARING AND ORDER DENYING

PETITION FOR WRIT OF CERTIORARI 

 

            THIS CAUSE came before the Court on the Motion for Rehearing, filed by the Respondent, Department of Highway Safety and Motor Vehicles (Department), in response to the Order Granting Petition for Writ of Certiorari, entered June 4, 2004.  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Motion should be granted and substitutes this Order Denying Petition for Writ of Certiorari for the prior order. [1]

            The Petitioner, Frances Howard Boyce (Boyce), seeks review of the Order, in the form of a letter dated January 27, 2004, in which the Department ordered Boyce to install an ignition interlock device on his vehicle as a result of being convicted of a 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).

            Boyce argues that the Department erred in requiring him to install an ignition interlock device on his vehicle, as only the Court, pursuant to Florida Statutes, § 316.1937, has the authority to require that such a device be installed.  However, the Court finds that Florida Statutes, § 316.193(2)(a)3., requires the mandatory placement of an ignition interlock device for a second DUI conviction.  Further, the Florida Administrative Code, Rule 15A-9.004(1), adopting by the Department pursuant to legislative directive, [2] also provides that ignition interlock devices are mandatory when required pursuant to § 316.193.  As it is undisputed that Boyce received his second DUI conviction after July 1, 2003, [3] the Department had no discretion but to require Boyce to install an ignition interlock device on his vehicle.  See e.g. Department of Highway Safety and Motor Vehicles v. Gordon, 860 So.2d 469 (Fla. 1st DCA 2003)(explaining that when a driver’s license revocation is required by statute, revocation by Department is an mandatory administrative function); Simmons v. State, 767 So.2d 666 (Fla. 1st DCA 2000)(holding that the Department, not the sentencing court, is authorized to revoke a defendant’s driver’s license if defendant is convicted of certain offenses).  Therefore, it is,

            ORDERED AND ADJUDGED that the Motion for Rehearing is granted and the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of October 2004.

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

Copies furnished to:

 

David R. Parry, Esquire

Jordan Hills Professional Center

1550 South Highland Ave., Suite C

Clearwater, FL  33756

 

Heather Rose Cramer, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

6801 Lake Worth Road, #230

Lake Worth, FL  33467



[1] The Court notes that the Motion for Rehearing attached Boyce’s driving record which the Court did not have available for its consideration in granting the petition. 

[2] See Fla. Stat. § 316.193(11)(stating that “[t]he Department of Highway Safety and Motor Vehicles is directed to adopt rules providing for the implementation of the use of ignition interlock devices”).

[3] See Fla. Stat. § 316.193(2)(a)3.(stating that “[t]he installation of such device may not occur before July 1, 2003”).