Petition for Writ of
Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and
Motor Vehicles: DRIVER’S LICENSES – termination for Special
Supervision Services Program – hearing officer charged with weighing
conflicting evidence – positive urinalysis for marijuana is competent
substantial evidence to support termination from SSS Program --Petition denied. Wojciechowski v. Dept. of Highway Safety and Motor
Vehicles, No. 04-0090AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
EDWARD WOJCIECHOWSKI,
Petitioner,
vs. Appeal No. 04-0090AP-88B
UCN522004AP000090XXXXCV
STATE OF
OF HIGHWAY SAFETY AND MOTOR VEHICLES,
BUREAU OF DRIVER IMPROVEMENT,
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, Edward Wojciechowski (Petitioner), seeks review of the Final Order
Denying Appeal, entered November 12, 2004, in which the hearing officer for the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
upheld the Petitioner’s termination from the Special Supervision Services (SSS)
program for testing posting for marijuana.
In reviewing the Order and the administrative action taken by the
Department, this Court must determine whether the Petitioner was afforded
procedural due process, whether the essential requirements of law were observed,
and whether the Department’s findings and judgment are supported by competent
substantial evidence. See Vichich
v. Department of Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
The
record shows that the Petitioner’s license was permanently revoked on November
9, 1993, following the Petitioner’s fourth conviction for DUI. On December 9, 2003, the Petitioner was
granted a restricted license and was required to participate in a SSS program.[1] The Petitioner was under the supervision of a
SSS program located in
The
Petitioner appealed his termination to a neighboring SSS program located in
The only issue before this Court is whether the Final Order is supported by competent substantial evidence. The Petitioner argues that he presented competent substantial evidence that his dietary supplements caused the false-positive urine test as he had never used marijuana. However, the hearing officer, as the finder of fact, was charged with weighing the evidence and testimony presented. See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994)(concluding that the hearing officer, as trier of fact, was in the best position to evaluate the evidence and witnesses).
The Court finds that the hearing officer considered all the evidence presented, including the results from the hair samples,[3] and concluded that the Petitioner’s termination from the Pasco SSS Program was warranted based on the positive drug test for marijuana. This Court cannot reweigh the evidence to arrive at a different conclusion. See Satter, 643 So.2d at 695 (quashing circuit court order as circuit judge reweighed the evidence and improperly substituted his judgment for that of the Department). Accordingly, the Court finds that the positive urinalysis is competent substantial evidence to support the Petitioner’s termination from the Pasco SSS Program and that 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
___________________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
___________________________________
PETER
RAMSBERGER
Circuit Judge, Appellate Division
___________________________________
ANTHONY
RONDOLINO
Circuit Judge, Appellate Division
Copies furnished to:
Curtis M. Crider, Esquire
Jason Helfant, Assistant General Counsel
Bureau of Administrative Reviews
[1] The Petitioner was eligible for a hardship license pursuant to Florida Statutes, §322.271(4)(1993). The Court notes that this section has since been amended such that a driver is no longer eligible for a hardship license after his/her fourth DUI conviction.
[2] The Petitioner testified that he was under the impression that he could either have the sample retested or appeal the negative test result to a neighboring DUI program. The Court notes that Florida Administrative Code, 15A-10.031(3), allows a client to have the same sample retested but that this option does not toll the time for filing an appeal of the negative test result.
[3] The Court notes that there is nothing in the Florida Administrative Code that allows a client to conduct his own independent test on a different sample. Further, as stated in the Preliminary Report, SSS Case Review/Presentation, the hair sample collection did not follow the Drug Free Workplace protocol. See e.g. Fla. Adm. Code 15A-10.031(3)(requiring laboratories that conduct drug tests for SSS Programs to comply with the protocol of the Drug Free Workplace).