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.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
HUNTER CHRISTIAN BERNSEE,
vs. Appeal No. 07-0008AP-88A
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSE
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.
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 (
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.
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).
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 (
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
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 (
The Rule of Lenity
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.”
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.
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.
AND ORDERED in Chambers, at
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
GEORGE M. JIROTKA CYNTHIA J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Sherwood S. Coleman, Esquire
Thomas C. Mielke, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews