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Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test instrument – Florida Statutes, section 316.1934(5)(a)-(e) – substantial compliance with statutory criteria – where the breath test affidavit failed to disclose the date of the last maintenance of the breath test instrument, the breath test affidavit is fatally defective – nothing in the record to indicate that maintenance was performed on breath test instrument as required by section 316.1934 - Petition granted. Falcone v. Dept. of Highway Safety and Motor Vehicles, No. 07-0011AP-88B (Fla. 6th Cir. App. Ct. Sept. 11, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

WILLIAM FALCONE,

                                    Petitioner,

 

 

vs.                                                                                               Appeal No. 07-0011AP-88B

                                                                                                   UCN522007AP000011XXXXCV

 

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

DIVISION OF DRIVER LICENSES,

                                    Respondent.

____________________________________________/

 

 

Ramsberger and Williams, JJ;

Demers, J., Dissenting

 

 

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI 

            THIS CAUSE came before the Court on the 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 granted as set forth below.

            The Petitioner, William Falcone (Falcone), seeks review of the Findings of Fact, Conclusions of Law and Decision (Decision), entered February 6, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained Falcone’s license revocation for driving under the influence of alcohol.  In reviewing the Decision and the administrative action taken by the Department, this Court must determine whether Falcone 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).  Falcone does not argue that he was denied due process or that the final order is not supported by competent substantial evidence so the Court need not address those prongs. 

            The record shows that after a formal review hearing, the hearing officer made the following findings of fact:

On 01/01/07 Officer Origilio of the St. Petersburg Police Department made contact with the driver of a motor vehicle who hit a sign, and was identified by his Florida driver’s license as William Joseph Falcone.  DUI Investigator Officer Terri Nagle observed the driver’s bloodshot, watery eyes, staggering walk, and an odor of an alcoholic beverage on his breath.  The petitioner performed poorly on the field sobriety tests administered.  Mr. Falcone was transported to the breath testing center at the police station, where he submitted to a breath test with the results of .105 g/210L and .103 g/210L.

 

Counsel for Falcone moved to invalidate the license suspension arguing that the Breath Test Result Affidavit and the Agency Inspection Report did not comply with the requirements of Florida Statutes, section 316.1934, as the documents did not show the date of the most recent required maintenance of the breath test instrument.  The hearing officer denied the motion and sustained Falcone’s DUI license suspension. 

            Before this Court, Falcone argues that the Department’s license suspension departs from the essential requirements of law as there was no evidence presented that the breath test machine had been maintained as required by law.  In reviewing this issue, the Court initially recognizes that the hearing officer, as the fact finder, was charged with determining whether Falcone was lawfully arrested for operating a motor vehicle with an unlawful breath alcohol level.  See Department of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994).  The hearing officer could make this determination without witnesses testifying on behalf of the Department and based on documents generated at the time of Falcone’s arrest.  See Satter, 643 So.2d at 695.  The stringent admissibility requirements in a criminal setting do not apply in an administrative review hearing.  See Department of Highway Safety and Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002).  Further, breath test results are admissible if the tests are performed in substantial compliance with approved methods.  See id.

            The majority finds that the breath test was not performed in substantial compliance with approved methods.  Florida Statutes, section 316.1934(5)(a)-(e), lists several criteria that must be met before a breath test affidavit is admissible without further authentication and as presumptive proof of impairment.  Section 316.1934(5)(e) states that if a breath test instrument is used, the affidavit must disclose “the date of performance of the most recent required maintenance on such instrument.”  (emphasis added).  The plain and ordinary meaning of the words used in this section clearly require that maintenance activity be listed on the breath test affidavit.  See e.g. Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001) (explaining that the court must first apply the plain and ordinary meaning of the words used unless this would lead to an unreasonable or clearly erroneous result); Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(same). 

            As the date of maintenance is not listed on either the Breath Alcohol Test Affidavit or the Agency Inspection Report, these documents are fatally defective and the hearing officer departed from the essential requirements of law in considering them during the formal review hearing.  The majority finds support for its decision in a series of cases addressing this issue.  See Department of Highway Safety and Motor Vehicles v. Cochran, 798 So.2d 761 (Fla. 5th DCA 2001); Department of Highway Safety and Motor Vehicles v. Dehart, 799 So.2d 1079 (Fla. 5th DCA 2001); Department of Highway Safety and Motor Vehicles v. Russell, 793 So.2d 1073, 1076 (Fla. 5th DCA 2001); Thompson v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 686 (Fla. 4th Cir. App. Ct. May 19, 2005). 

            In Cochran, the Fifth District Court of Appeal concluded that a possible defect in the breath test affidavit alone is not a basis to overturn a hearing officer’s findings which support the license suspension.  See Cochran, 798 So.2d at 763.  However, and of critical importance, the Fifth District Court of Appeal specifically found that “an additional document in the record, also submitted to the hearing officer – the alcohol testing program form – indicates the required maintenance was performed on the same day.”  (emphasis added).  Id.; see also Dehart, 799 So.2d at 1081 (finding that the agency inspection report indicated that the inspector performed required maintenance); Russell, 793 So.2d at 1076 (same). 

            The record in this case is void of any indication that required maintenance was performed as mandated by statute.  Hence, the majority concludes that the hearing officer departed from the essential requirements of law in relying on the Breath Alcohol Test Affidavit and the Agency Inspection Report in sustaining Falcone’s license suspension when there is no indication on these documents that required maintenance was performed on the breath test instrument.  

Demers, J., Dissent

            I must respectfully dissent.  In this case, both the Breath Alcohol Test Affidavit and the Agency Inspection Report provide the date of the last inspection, 12/13/2006, showing that it was timely inspected less than one month prior to Falcone’s breath test, on January 1, 2007.  While there is not a separate maintenance date listed in these documents, one could reasonably infer that the breath test instrument did not need any required maintenance at the time the instrument was inspected.  (emphasis added).  Additionally, the Agency Inspection Report states:  “The above instrument complies . . . with Chapter 11D-8, FAC,” the chapter of the Florida Administrative Code that regulates the inspection and maintenance of breath testing instruments, indicating that the breath test instrument was working properly and that the Department substantially complied with applicable statutes and rules.  See Dehart, supra.; Russell, supra.

            Regardless, as the Cochran case makes clear, the fact that there is a single defect in the Breath Alcohol Test Affidavit and Agency Inspection Report does not prevent the hearing officer from admitting these documents into evidence.  See Cochran, supra.; Alliston, supra.  Cochran holds that it is the duty of this Court to address “the issue of whether or not there was substantial evidence in the record to support the hearing officer’s findings.”  Id.  In this case, the hearing officer found, by a preponderance of the evidence, that Falcone was operating a motor vehicle with an unlawful breath-alcohol level, a finding supported by the record.  Therefore, the Court has no choice but to deny certiorari relief.

            In reaching this conclusion, it must be pointed out that there is no binding case law directly on point that answers the issue presented by this case, to wit:  is the fact that there is no maintenance date, nor any direct indication that maintenance was performed on the breath test instrument, render the agency inspection report and breath test affidavit fatally defective?  In the absence of such authority, I find that the hearing officer’s decision to sustain Falcone’s license suspension cannot be quashed as it appears that the Department substantially complied with the applicable rules and statutes and there is competent substantial evidence to support the hearing officer’s finding of DUI. 

 

 

 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Findings of Fact, Conclusions of Law and Decision is quashed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of July 2007.

 

 

                                                            ______________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

 

_____________________________                                      _____________________________

PETER RAMSBERGER                                                    AMY M. WILLIAMS

Circuit Judge, Appellate Division                                           Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

 

Melissa A. Loesch, Esquire

13620 – 49th Street North, Suite 201

Clearwater, FL  33762

 

Jason Helfant, 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