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 (Fla. 6th Cir. App. Ct. Jan. 10, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

GEORGE J. WUNDERLICH,

                        Petitioner,

vs.                                                                                                Appeal No. 04-0048AP-88A

                                                                                                    UCN522004AP000048XXXXCV

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, 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 New York, and his second DUI conviction, was entered March 4, 2004, in the State of Florida.   In reviewing the Department’s action, 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).

            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 New York conviction would not be considered a prior alcohol-related criminal conviction for the purposes of sentencing enhancement on Wunderlich’s Florida DUI charge.

            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 (Fla. 1st DCA 2003)(stating that based on the plain language of § 322.28(2)(a)2., a criminal sentence is separate and distinct from a mandatory administrative revocation).  In reviewing the Department’s action, the Court finds that Florida Statute, § 322.28(2)(a)2., requires the revocation of a driver’s license for a period of not less than 5 years upon a second DUI conviction.  This section also states that “a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as proscribed by s. 316.193 will be considered a previous conviction for violation of s. 316.193.”  See also Fla. Stat. § 322.24.

            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 Florida pursuant to § 316.193.  Accordingly, in giving deference to the Department’s interpretation of these statutes,[1] the Court finds that Wunderlich’s request for certiorari relief must be denied.

            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 January 2005.

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

Copies furnished to:

Donald P. Simon, Esquire

5801 Ulmerton Road, Suite 100

Clearwater, FL  33760

 

Carlos J. Raurell, Assist. General Counsel

Fla. Dept. of Highway Safety & Motor Vehicles

2515 West Flagler Street

Miami, FL  33135



[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).