Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVERíS LICENSES Ė Due process Ė Sufficiency of evidence.Any error from a hearing officerís failure to notify petitioner of an option to have a urine sample retested, was harmless error and did not deprive due process when the petitionerís defense to the positive urine test result was mistaken ingestion.Hearing officersí rejections of the petitionerís evidence on defense were reasonable; therefore, the Appellate Panel will not substitute its judgment.Petition denied. Paul v. DHSMV, No. 08-000012AP-88B (Fla. 6th Cir.App.Ct. Sept. 15, 2008).








MATTHEW PAUL††††††††††††††††††††††††††††††††††††††††††††††††††† APPEAL No.: 08-000012AP-88B

††††††††††† Petitioner,††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522008AP000012XXXXCV







††††††††††† Respondent.





††††††††††† THIS CAUSE came before the Court on Petitionerís Motion 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.

††††††††††† The Petitioner, Matthew Paul (Paul), seeks review of the Findings of Fact, Conclusions of Law and Decision, entered December 19, 2007, in which the Respondent, Department of Highway Safety and Motor Vehicles (Department), sustained the suspension of his driving privilege after finding noncompliance with Special Supervision Services program by the Suncoast Safety Council.The standard of review is whether the petitioner was afforded procedural due process, whether the essential requirements of law were observed, and whether the Departmentís 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). The Petitioner in his Writ of Certiorari addresses whether he was afforded procedural due process and whether the Departmentís findings were supported by substantial evidence. Petitioner addresses whether the essential requirements of law were observed in his arguments solely as it relates to the sufficiency of the evidence. As such, this Court addresses due process and the sufficiency of the evidence.

††††††††††† On January 18, 2005,Petitioner was convicted of a third DUI offense within ten years.Department imposed a ten year driverís license suspension as of that date. On August 31, 2007, Petitioner enrolled in the Special Supervision Services program administered by the Suncoast Safety Council of Pinellas County wherein he was required to periodically supply a urine sample to test for illegal drugs or substances . This appeal stems from the Petitionerís failure of a urine test that tested positive to barbiturates. The Suncoast Safety Council notified Petitioner of termination from the Supervision Services program.Petitioner appealed. At the appeal hearing, he presented an affidavit stating he had unknowingly ingested the prescription medication when it was provided to him by a co-worker. The DUI Counterattack program concurred with Suncoast Safety Councilís decision to cancel his participation in the Supervision Services. Thereafter, the Department cancelled his restricted driverís license.

I.††††††††† Due Process

††††††††††† Petitioner was provided notice and opportunity to be heard.His only claim is that he was denied due process because when he was notified of his right to appeal, he was not notified of his other administrative options to have the urine sample re-tested.†† First, nothing prevented Petitioner from seeking to have the sample retested.Second, if this was error, it was harmless and does not rise to the level of denial of due process, because Petitionerís defense is that he did take barbiturates but he did so unknowingly and by mistake.He has never maintained that he did not take barbiturates and that the urine test was wrong.

II.††††††† Substantial evidence

††††††††††† Two DUI programs rejected the evidence that Petitioner took the barbiturates by mistake. Petitioner suggests that 1) the Petitionerís co-worker, who provided an affidavit, was mixing barbiturates with Excedrin in an Excedrin bottle; 2) the barbiturates looked like Excedrin; 3) the co-worker invited Petitioner to help himself to her pills and never warned him that barbiturates were there; and 4) the Petitioner happens to be so unlucky as to pick one of the barbiturates. This could be true and it could be false. It was perfectly reasonable for the Administrative Officers to reject the suggestion out of hand. The Circuit Court cannot substitute its judgment for the administrative action. City of Deerfield Beach v. Vaillant, 419 So.2d 624,626 (Fla. 1982).

††††††††††† Therefore, it is,

††††††††††† ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby DENIED.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September, 2008.




Circuit Judge, Appellate Division





_______________________________††††††††††††††††††††† ______________________________

DAVID A. DEMERS†††††††††††††††††††††††††††††††††††††††††††††† J. THOMAS MCGRADY

Circuit Judge, Appellate Division†††††††††††††††††††††††††††††† Circuit Judge, Appellate Division





Copies furnished to:


Jason Helfant, Esq.

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

2515 W. Flagler Street

Miami, Florida 33135


Marc N. Pelletier, Esq.

877 Executive Center Dr. W.

Suite 112

St. Petersburg, Florida 33702