Petition for Writ of Certiorari
to Review Quasi-Judicial Action, Department of Highway Safety and Motor
Vehicles: DRIVER’S LICENSES – revocation following
second DUI – Court must give deference
to hearing officer’s interpretation of New York’s Traffic Law § 1192 “Driving
while ability impaired” - § 1192 would be grounds for a DUI conviction pursuant
to § 316.193 – criminal trial court order does not operate as collateral
estoppel or res judicata on administrative action - Petition denied. Wunderlich
v. Dept. of Highway Safety and Motor Vehicles, No. 04-0048AP-88A (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
GEORGE J. WUNDERLICH,
Petitioner,
vs. Appeal No. 04-0048AP-88A
UCN522004AP000048XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR
VEHICLES,
DIVISION OF DRIVER
LICENSES,
Respondent.
____________________________________________/
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, George J.
Wunderlich (Wunderlich), seeks review of the Order of License Revocation,
Suspension, or Cancellation (Order), dated May 12, 2004, in which the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
revoked Wunderlich’s driver license for a period of five years for receiving a
second DUI conviction within a period of five years. As set forth in the Department’s Order,
Wunderlich’s first DUI conviction (as recorded by the Department) was entered
July 30, 2002, in the State of
Wunderlich argues that the Department is collaterally
estopped under the doctrine of res judicata from revoking his license for five
years for a second DUI conviction as a trial court, in the criminal
adjudication of the Florida DUI charge, determined that Wunderlich’s first
conviction of Driving While Ability Impaired, pursuant to New York’s Vehicle
and Traffic Law (VTL), § 1192, “is distinctly different from the offense of
Driving Under the Influence as defined by Fla. Stat. § 316.193 (2004).” The trial court concluded that the
Without the need to address the correctness of the
trial court’s decision, which neither party appealed, the Court finds that this
order was entered in a separate, distinct criminal proceeding and does not
operate as collateral estoppel nor res judicata on the administrative action
taken by the Department in revoking Wunderlich’s license. See Department of Highway Safety
and Motor Vehicles v. Gordon, 860 So.2d 469, 471 (
As mentioned above, Wunderlich’s first conviction was
pursuant to VTL, § 1192, specifically subsection 1., that states: “Driving while ability impaired. No person shall operate a motor vehicle while
the person’s ability to operate such motor vehicle is impaired by the consumption
of alcohol.” The Court finds that this
language is similar Florida Statutes, § 316.193(1)(a), providing that a person
is guilty of DUI if “[t]he person is under the influence of alcoholic
beverages, . . . when affected to the extent that the person’s normal faculties
are impaired.” The Court finds that that
a conviction under § 1192 would be grounds for a DUI conviction in
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for
Writ of Certiorari is denied.
DONE AND ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Donald P. Simon, Esquire
Carlos J. Raurell, Assist. General Counsel
[1] See Okeechobee Health Care v. Collins, 726 So.2d 775, 778 (Fla. 1st DCA 1998)(explaining that an agency’s interpretation of a statute it is charged with enforcing is entitled to great deference).