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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
LANCE J. LEGER,
vs. Appeal No. 05-0059AP-88B
HIGHWAY SAFETY AND MOTOR VEHICLES,
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.
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 (
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.
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 (
addressing the second issue, the Court finds that there is no requirement that
a hearing officer be a licensed attorney.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
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
Jason Helfant, Assistant General Counsel
Bureau of Administrative Reviews