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.
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
MATTHEW PAUL††††††††††††††††††††††††††††††††††††††††††††††††††† APPEAL No.: 08-000012AP-88B
††††††††††† Petitioner,††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522008AP000012XXXXCV
OF HIGHWAY SAFETY AND MOTOR
ORDER DENYING† PETITION FOR WRIT OF CERTIORARI
††††††††††† 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 (
††††††††††† 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
††††††††††† Therefore, it is,
††††††††††† ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby DENIED.
DONE AND ORDERED in Chambers, at
AMY M. WILLIAMS
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
Marc N. Pelletier, Esq.