Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – enhanced sentencing – statutory intent of Florida Statutes, section 322.28(2)(a)2 – intent of enhanced sentencing is to provide increased and added deprivation of driving privilege upon habitual DUI offenders – although driver’s first DUI conviction happened after second DUI arrest, Department did not err in revoking license for 5 years for receiving a second DUI conviction within a 5-year period - Petition denied. Bernsee v. Dept. of Highway Safety and Motor Vehicles, No. 07-0008AP-88A (Fla. 6th Cir. App. Ct. July 17, 2007).










vs.                                                                                               Appeal No. 07-0008AP-88A










            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the briefs, the record, and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

Case History

            The Petitioner, Hunter Christian Bernsee (Bernsee), seeks review of the Order of License Revocation, Suspension, or Cancellation (Order), entered January 2, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), revoked Bernsee’s driving privilege for a period of five years following Bernsee’s second conviction for driving under the influence (DUI).  In reviewing a final order and administrative action taken by the Department, this Court must determine whether the driver 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).  As Bernsee does not argue that he was denied due process or that the Order is not supported by competent substantial evidence, the Court need not address those prongs.

The record shows that Bernsee was arrested for DUI on March 24, 2006, and again on May 19, 2006.  On December 13, 2006, Bernsee was convicted of DUI for both offenses.  On January 2, 2007, the Department revoked Bernsee’s driving privilege for a period of five years for receiving a second DUI conviction within a 5-year period.  Bersee argues that the Department departed from the essential requirements of law in revoking his driver’s license for a period of 5 years when his second DUI offense happened before his first DUI conviction.

Statutory Construction

Pertinent to this issue is Florida Statutes, section 322.28(2)(a)2., which states:

Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 5 years.  (emphasis added).


In reviewing this section, before principles of statutory construction are applied, the Court must first apply the plain and ordinary meaning of the words used unless this would lead to an unreasonable result or a result clearly contrary to legislative intent.  See State v. Burris, 875 So.2d 408, 410 (Fla. 2004); see also Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006).  A court’s function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless.  See id.  An agency’s statutory construction is entitled to great weight and a court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law.  See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla.2001); see also Braman Cadillac v. Department of Highway Safety and Motor Vehicles, 584 So.2d 1047, 1050 (Fla. 1st DCA 1991).

            In applying the law to the facts of this case, the plain language of section 322.28(2)(a)2. provides that enhanced sentencing can only be imposed when a second DUI offense occurs after the first DUI conviction within a five-year period.  This did not happen in this case since Bernsee’s second DUI offense occurred before his conviction for the first DUI offense.  However, this is not the end of the analysis as the obvious intent of section 322.28 is equally clear:  to protect the motoring public by removing habitual drunk drivers from Florida’s roadways.  Florida Statutes, section 322.263, states that the legislative intent is to provide maximum safety for all persons who travel the highways of this state by discouraging repetitious criminal behavior by imposing “increased and added deprivation of the privilege of operating motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.”  See § Fla. Stat. 322.263(3)(2006); see also Department of Highway Safety and Motor Vehicles v. Gordon, 860 So.2d 469, 471 (Fla. 1st DCA 2003); Jackson v. State, 634 So.2d 1103, 1105 (Fla. 4th DCA 1994). 

            As set forth in Department of Highway Safety and Motor Vehicles v. Bender, 497 So.2d 1332, 1334 (Fla. 2d DCA 1986), Chapter 322 must be “liberally construed to the end that the greatest force and effect may be given to its provisions for the promotion of public safety.”  In Jackson, supra, the Fourth District Court of Appeal also explained:  “the overall scheme [of section 322.28] is for increased terms of suspension based on the number of times the defendant drives under the influence, not based on the happenstance consequences of one episode of driving under the influence.”  Similarly, in Pulaski v. State, 540 So.2d 193, 195 (Fla. 2d DCA 1989)(citing Department of Publix Safety, Driver’s License Division v. Mitchell, 152 So.2d 764 (Fla. 3d DCA 1963), the Second District Court of Appeal found that there was no significance to the timing of two separate offenses as it was the trial court’s duty to suspend the defendant’s driving privilege for a longer period of time based on successive convictions. 

The Rule of Lenity

The administrative revocation of a driver's license for DUI is not “punishment” of the offender.  See Department of Highway Safety and Motor Vehicles v. Grapski, 696 So.2d 950, 951 (Fla. 4th DCA 1997). Rather “it is an administrative remedy for the public protection that mandatorily follows conviction for certain offenses.”  Id. (quoting Smith v. City of Gainesville, 93 So.2d 105, 107 (Fla.1957)); see also Department of Highway Safety and Motor Vehicles v. Vogt, 489 So.2d 1168, 1170 (Fla. 2d DCA 1986).  When a driver's license revocation is made mandatory by statute, revocation is an administrative function rather than the imposition of a criminal sentence.  See Gordon, supra.

The statutory rule of lenity requires that penal statutes be strictly construed and when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.  See Fla. Stat. § 775.021(1)(2006).  That statute by its terms applies only to statutes which define criminal offenses, and thus has no bearing upon construction of the statute involved in the present case.  See Jones v. State, 728 So2d 788, 791 (Fla. 1st DCA 1999).


            Under the facts of this case, the plain and ordinary meaning of Florida Statutes, section 322.28(2)(a)2., leads to an unreasonable result and a result clearly contrary to legislative intent.  Further, it can not be said that the Department’s interpretation of this section, which is entitled to great weight, is clearly erroneous.  The Court finds that it must defer to the Department’s interpretation of section 322.28 in imposing a five-year suspension of Bernsee’s driving privilege.    

            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 July 2007.





                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division






______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division









Copies furnished to:


Sherwood S. Coleman, Esquire

133 North Fort Harrison Avenue

Clearwater, FL  33755


Thomas C. Mielke, 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