Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – subpoenaed officer – hearing officer erred in quashing police officer’s subpoena as there was no finding, nor record evidence, showing “just cause” for police officer’s excusal as required by the Florida Administrative Code, Rule 15A-6.015 – harmless error doctrine applied since Court could offer no more relief than that offered by the hearing officer during the formal review hearing below, that is a new hearing – hearing officer not required to be a licensed attorney - Petition denied. Leger v. Dept. of Highway Safety and Motor Vehicles, No. 05-0059AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

LANCE J. LEGER,

                        Petitioner,

 

vs.                                                                                                Appeal No. 05-0059AP-88B

                                                                                                    UCN522005AP000059XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

                        Respondent.

____________________________________________/

 

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the Amended 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, Lance J. Leger (Leger), seeks review of the Final Order of License Suspension, entered July 8, 2005, in which the hearing officer for the Respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Leger’s driving privilege was properly suspended for a period of six months for driving under the influence (DUI).  In reviewing the Final Order and the administrative action taken by the Department, this Court must determine whether Leger 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).

            On May 13, 2005, at approximately 11:14 p.m., Officer Arkovich, of the St. Petersburg Police Department, observed a vehicle weaving continuously in and out of traffic, driving 48 m.p.h. in a 30 m.p.h. zone, and forcing one vehicle to change lanes.  Officer Arkovich conducted a traffic stop and made contact with the driver, identified as Leger.  Officer Arkovich observed several signs of impairment, including that Leger smelled of alcohol, had slurred and mumbled speech, bloodshot and watery eyes, and a dazed uncomprehending look.  Leger swayed as he stood and staggered as he walked.  Leger failed the field sobriety tests and was arrested for DUI.  After being transported to the St. Petersburg Police Department, Leger submitted to a breath test which showed he had an unlawful breath alcohol level of .173g/210L and .172g/210L.  After a formal review hearing, Leger’s license suspension was sustained.

            Before this Court, Leger argues that the hearing officer failed to follow the law by excusing a properly subpoenaed officer and that the formal review hearing was inherently unfair and violated Leger’s right to due process since it was conducted by a non-lawyer.  In addressing the first issue, the Court finds that Leger sought to challenge the sufficiency of the breath test affidavit, which Leger argues was defective as it set forth the date of the most recent agency inspection and not the date of last maintenance, by compelling the testimony of Officer Nagle, who conducted the breath test.  The transcript shows that the hearing officer excused Officer Nagle from appearing, stating that Officer Nagle was on an off-duty assignment; the hearing officer did not know what off-duty assignment Officer Nagel was performing.  There is nothing in the record to show that Officer Nagel submitted a written request.  Furthermore, counsel for Leger was unaware that Officer Nagel had been excused prior to the formal review hearing.

The Court finds that the hearing officer erred in quashing Officer Nagel’s subpoena and that Leger was denied due process in being deprived of the opportunity to question Officer Nagel.  The hearing officer has the authority to excuse a subpoenaed witness, pursuant to the Florida Administrative Code, Rule 15A-6.015, but only for “just cause.”  As set forth in the rule, “just cause” is defined as: “extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.”  The Court finds that the rule implicitly requires the hearing officer to make a finding, in the record, setting forth the extraordinary circumstances that warrant the release of a properly subpoenaed witness.  In the proceedings below, the hearing officer failed to make such a finding and the record is void of any “just cause” evidence. 

Nonetheless, under the facts of this case, the Court finds that this error is harmless.  See Nationwide Mutual Insurance Company v. Vosburgh, 480 So.2d 140, 145 (Fla. 4th DCA 1985)(explaining that harmless error test is whether, but for the error complained of, a different result would have been reached).  The transcript shows that the hearing officer asked Leger’s attorney several times during the formal review hearing if he would like a continuance in order to procure Officer Nagle’s testimony.  Leger’s attorney declined to continue the hearing.  If the Court were to grant certiorari relief, the cause would be remanded for a new hearing, in essence the same relief or result as a continued hearing in the original proceeding, resulting in the application of the harmless error doctrine.  See id.     

            In addressing the second issue, the Court finds that there is no requirement that a hearing officer be a licensed attorney.  See State, Department of Highway Safety and Motor Vehicles v. Griffin, 909 So.2d 538, 541 (Fla. 4th DCA 2005); Gurry v. Department of Highway Safety, 902 So.2d 881, 885 (Fla. 5th DCA 2005).  The hearing officer is only required to act with impartiality and neutrality in carrying out the performance of his or her duties.  See Griffin, 909 So.2d at 542-43.  Accordingly, the Court finds that Leger’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 St. Petersburg, Pinellas County, Florida this ________ day of February 2006.

 

 

 

 

 

                                                ______________________________

                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division

 

 

Copies furnished to:

 

Jeffrey Brown, Esquire

777 Alderman Road

Palm Harbor, FL  34683

 

Jason Helfant, Assistant 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