Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – no competent substantial evidence in the record to support mandatory revocation pursuant to Sections 322.26(2) and 322.27(1)(a) – only document before hearing officer was DAVID report – DAVID report only generally stated accident was alcohol related, but did not provide results of blood test, that driver was arrested, or even suspected, of DUI  - Petition granted. Darnley v. Dept. of Highway Safety and Motor Vehicles, No. 05-0013AP-88A (Fla. 6th Cir. App. Ct. Sept. 9, 2005).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

GEORGE DARNLEY,

                        Petitioner,

vs.                                                                                               Appeal No. 05-0040AP-88A

                                                                                                   UCN522005AP000040XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                        Respondent.

____________________________________________/

 

 

ORDER GRANTING 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 granted as set forth below.

            The Petitioner, George Darnley (Darnley), seeks review of an order, in the form of a letter dated April 22, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Darnley’s driving privilege was properly suspended for a period of one year for committing an offense for which there is a mandatory license suspension upon conviction of an offense set forth in Florida Statutes, § 322.26(2),[1] pursuant to Florida Statutes, § 322.27(1)(a).[2]  In reviewing the order and the administrative action taken by the Department, this Court must determine whether Darnley 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 (Fla. 2d DCA 2001)(setting forth the standard of review for administrative action taken by the Department).

            The transcript of the hearing establishes that Darnley’s license was suspended following his involvement in an automobile crash on February 2, 2005.  The only documented admitted into evidence by the Department was a computer printout from the Department’s Driver and Vehicle Information Database, or D.A.V.I.D.  This document provides that a vehicle pulled in front of a motorcycle, causing the motorcycle to strike the vehicle and then slide 107 feet before coming to rest.  Darnley was operating the motorcycle.  The D.A.V.I.D. report states that the accident was alcohol related and that a blood test had been initiated.  At the time of the hearing, the blood test results were unknown and Darnley had not been convicted of any crime.  The hearing officer considered the report and the testimony of a witness for Darnley in determining that Darnley’s driver’s license suspension must be sustained pursuant to Florida Statutes,

§ 322.26(2). 

            Darnley argues that the Department erred in relying on the D.A.V.I.D. report and that the order sustaining Darnley’s license suspension is not supported by competent substantial evidence.  In reviewing these issues, the Court initially finds that the D.A.V.I.D. report was admissible in this administrative proceeding and could be considered by the hearing officer.  See Fla. Admin. Code Rule 15A-6.013(2); see also Fla. Stat. § 322.2615(11); State, Dept. of Highway Safety and Motor Vehicles v. Anthol, 742 So.2d 813, 813-14 (Fla. 2d DCA 1999)(explaining that reports or documents of a law enforcement officer need not be in affidavit form to be admissible in more relaxed administrative proceeding). 

            This Court must determine whether the D.A.V.I.D. report, the only document considered by the hearing officer, is competent substantial evidence to support the hearing officer’s conclusion that Darnley had committed an offense which would require mandatory revocation of his license upon conviction.  See Vichich, 799 So.2d at 1073 (explaining that the reviewing court can only consider those documents before the department to support its order).  The Court cannot consider the documents attached to the Department’s Response, including the Florida Traffic Crash Report, as those documents were not presented to the hearing officer for consideration.  See id.; see also City of Miramar v. Amoco Oil Company, 524 So.2d 506, 507 (Fla. 4th DCA 1988)(stating that circuit court’s certiorari review is limited to the evidence presented before the particular agency involved). 

            The D.A.V.I.D. report only generally states that the accident was alcohol related and that a blood test was initiated.  The report does not provide the results of the blood test, does not state that Darnley was arrested for DUI, or even suspected of DUI.  Hence, without reweighing the evidence, the Court finds that the Department’s decision to sustain Darnley’s license suspension based solely on the D.A.V.I.D. report is not supported by competent substantial evidence and must be quashed.  Compare with Payne v. State, Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 515a (Fla. 9th Cir. App. Ct. 2002)(sustaining Department’s license suspension of driver pursuant to § 322.27(1)(a) as the FHP’s investigative report and accident report provided competent substantial evidence that the driver had committed the offense of DUI manslaughter).

           

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the order, entered on April 22, 2005, is quashed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2005.

 

 

 

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                                  ______________________________

LAUREN C. LAUGHLIN                                                     JAMES R. CASE

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Paul Reed, Esquire

Barnett Plaza, Suite 2400

101 East Kennedy Boulevard

Tampa, FL  33602

 

Carlos J. Raurell, Assistant General Counsel

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



[1] This section states, in pertinent part:  “The department shall forthwith revoke the license or driving privilege of any person upon receiving a record of such person’s conviction of any of the following offenses: (2) Driving a motor vehicle or being in actual physical control thereof, or entering a plea of nolo contendere, said plea being accepted by the court and said court entering a fine or sentence to a charge of driving, while under the influence of alcoholic beverages or a substance controlled under chapter 893, or being in actual physical control of a motor vehicle while under the influence of alcoholic beverages or a substance controlled under chapter 893.”

[2] This section states, in pertinent part:  “(1)Notwithstanding any provision to the contrary in chapter 120, the department is hereby authorized to suspend the license of any person without a preliminary hearing upon a showing of its records or other sufficient evidence that the licensee: (a) Has committed an offense for which mandatory revocation of license is required upon conviction.”