Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – special supervision services program – due process – driver did not avail himself of the appeal process following his termination from SSS program for being “under the influence” – driver cannot complain on appeal that he was denied due process when he declined opportunity to dispute the reliability of alcohol test --Petition denied.  Titus  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0049AP-88B (6th Cir. App. Ct. August 18, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

BRUCE E. TITUS,

                        Petitioner,

vs.                                                                                               Appeal No. 04-0049AP-88B

                                                                                                   UCN522004AP000049XXXXCV

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 Petition for Writ of Certiorari and the Response.  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, Bruce E. Titus (Titus), seeks review of the Order of License Revocation, Suspension, or Cancellation, entered June 3, 2004, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), canceled Titus’ driving privilege indefinitely for violating the conditions of the Special Supervision Services Program, Suncoast Safety Council, Inc.   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).

            Other than the appealed order, there is no appendix attached to the Petition and the Petition does not contain any citations of authority in support of the argument that Titus was denied due process by the Department’s actions below.  However, the Department’s Response, and attached appendix, clarifies that the Titus was enrolled in the Suncoast Safety Council DUI program as a condition of having a restricted driver’s license following revocation of his license for DUI.  As stated in a letter sent to Titus by Suncoast, dated May 7, 2004, Titus was cancelled from the program after Titus appeared for a scheduled appointment, on May 5, 2004, at Suncoast “under the influence.”  The Narrative Summary, apparently completed by Suncoast, provides that Titus had a breath alcohol level of .024%, .017%, and .017%.  The letter specifically directs that  “[y]ou have the right to appeal this decision at a DUI Program in another county and this is explained in Form HSMV 77018 which you received when you enrolled.”  Titus was instructed to come into Suncoast’s office no later than May 17, 2004, to exercise his right to appeal

            Titus chose not to avail himself of the appeal process, which would have allowed Titus a face-to-face meeting with a second DUI program that would have reviewed all the written documentation related to the issues resulting in his termination from Suncoast’s program.  See Fla. Admin. Code Rule 15A-10.031.  Accordingly, the Court finds that Titus cannot now complain on appeal before this Court that he was denied due process in the proceedings below since he was provided an opportunity to dispute the reliability or authentication of his alcohol test but declined to do so.  See e.g. Dept. of Highway Safety and Motor Vehicles v. Marshall, 848 So.2d 482, 485 (Fla. 5th DCA 2003)(finding that issues not presented at administrative hearing are deemed waived); Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995)(same).  Therefore, the Court must refrain from reweighing the evidence and must defer to the Department’s decision to cancel Titus’ driving privilege.  See Dept. of Highway Safety and Motor Vehicles v. Smith, 687 So.2d 30, 33 (Fla. 1st DCA 1997)(stating that the circuit court is prohibited from weighing or reweighing the evidence); see also Dept. of Highway Safety and Motor Vehicles v. Abbey, 745 So.2d 1024, 1025 (Fla. 2d DCA 1999)(providing that court should defer to a reasonable interpretation of a statute by the administering agency). 

            Therefore, it is,

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

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

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Robert A. Love, Esquire

Post Office Box 55426

St. Petersburg, FL 33732-5426

 

Jason Helfant, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135

 

Bureau of Administrative Reviews

4585 140th Avenue North, Suite 1002

Clearwater, FL  33762