Petition
for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway
Safety and Motor Vehicles:
DRIVER’S LICENSES – cancellation of special supervision services program (SSS
Program) – due process. Petitioner was
not denied due process by the lack of an attorney where he had the opportunity
to present evidence and witnesses – Substantial evidence supported finding that
he violated terms of the SSS Program by testing positive for alcohol use –
Petitioner was given opportunity to dispute the reliability of the alcohol
tests, but his submissions were inadequate to refute indications of alcohol use
- - Petition denied. Keeling v. Suncoast Safety Council,
No. 09-000038AP (Fla. 6th Cir. App. Ct. April 16, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR
REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS
COUNTY, FLORIDA
APPELLATE DIVISION
DANNY
PATRICK KEELING
Petitioner,
v. Ref. No.: 09-000038AP-88B
UCN:
522008AP000038XXXXCV
SUNCOAST SAFETY
COUNCIL and 522009AP000038XXXXCV
STATE OF FLORIDA,
DEPARTMENT
OF HIGHWAY SAFETY
AND MOTOR
VEHICLES.
Respondents.
______________________________________/
ORDER
DENYING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE came before the Court on
the Petition for Writ of Certiorari filed by Petitioner Danny Patrick Keeling
on July 20, 2009. Petitioner seeks review
of the Order of License Revocation, Suspension, or Cancellation issued by Respondent Department
of Highway Safety and Motor Vehicles ("DHSMV")
and a finding that the decision was not supported by competent and substantial
evidence. Petitioner requests the court
to reinstate his driving privileges or, alternatively, to remand this matter
for rehearing. The DHSMV filed a
response, to which Petitioner filed a reply. Upon consideration,
this Court finds that the Petition for Writ of Certiorari must be denied as set
forth below.
Petitioner’s driver’s license was
revoked[1]
after receiving three DUI convictions.
Pursuant to Florida Statutes section 322.271, Petitioner sought and
obtained reinstatement of his license on a restricted basis. As a condition of his restricted license, Petitioner
was required to enroll in and comply with the terms of the DUI Special
Supervision Services Program (“SSS Program”) of the Suncoast Safety Council
(“Suncoast”), including regular, periodic drug testing.
As part of this testing, on April
23, 2009, a Suncoast evaluator administered Petitioner’s initial breath test
using a handheld breathalyzer, and Petitioner registered a blood alcohol
content (“BAC”) of .02. He denied
drinking. The evaluator instructed the
Petitioner to rinse his mouth and not to smoke or eat for fifteen minutes. After fifteen minutes, with a supervisor as a
witness, the evaluator conducted a second breath test, which indicated a .013
BAC, and a mouth swab, which indicated the presence of alcohol. The evaluator also noted a slight odor of
alcohol in the air.
On May 12, 2009, Suncoast issued its
Letter Recommending Cancellation from the SSS Program. At that time, Petitioner signed the “Client
Rights/Appeal Process” form detailing the procedure for appealing Suncoast’s
unfavorable recommendation. Pursuant to
Florida Statutes section 322.271, the DHSMV cancelled Petitioner’s license for
an indefinite period, starting June 11, 2009. Petitioner appealed Suncoast’s recommendation
to the DUI Programs of Pasco County (“Pasco DUI Program”). After conducting an appeal hearing, the Pasco
DUI Program concurred with Suncoast’s recommendation to cancel Petitioner’s
license. Petitioner filed the instant
action to appeal the final decision of the DHSMV.
In
reviewing the DHSMV’s order, this Court is limited to
determining (1) whether procedural due process has been accorded, (2) whether
the essential elements of law have been observed, and (3) whether the
administrative findings are supported by competent, substantial evidence.
Vichich v. Dep’t of Highway Safety &
Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001). It is
not the job or function of the circuit court to reweigh evidence and make
findings when it undertakes a review of an administrative decision. Dep’t of Highway Safety & Motor Vehicles
v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994). The hearing officer assigned to hear the case
by the department is “the trier of fact and in the best position to evaluate
the evidence.” Dep’t of Highway Safety & Motor Vehicles v. Favino, 667 So. 2d
305, 309 (Fla. 1st DCA 1995).
Petitioner first contends that he
was denied due process because he was informed that he could not have an
attorney present and because he did not have an opportunity to present evidence
and witnesses. In particular, Petitioner
points to a document entitled, “Client Rights/Appeal Process,” which notifies
an individual of his right to appeal substance abuse testing procedures or
results, but it fails to indicate that during such appeal, the individual may
be represented by an attorney and may offer evidence and witnesses in his
favor.[2] Although the petitioner has a right to have
an attorney present during an administrative hearing,[3]
the lack of an attorney does not deprive Petitioner of a meaningful review or
due process. See Wilson v. Dep’t of Highway
Safety & Motor Vehicles, No. 06-000096AP-88B (Fla. 6th Cir. Ct.
April 24, 2007). Moreover, the record indicates
that Petitioner did have an opportunity to present evidence and witnesses, but
he did not avail himself of the procedures available to him.
Petitioner further argues that the
conclusory statements upon which the termination of his restricted license was
based did not constitute substantial evidence.
He argues that the decisions failed to indicate particulars such as the
make and type of breathalyzer used, the maintenance record of the breathalyzer,
the type of swab test, the testing conditions, and the test evaluator’s
detection of the odor of alcohol.
Petitioner argues that he could have rebutted the indications of alcohol
use had he known more about the testing procedures. Instead, he only presented general information
downloaded from the internet concerning gastroesophageal reflux and the
unreliability of breath tests. Despite
this limited presentation, the Petitioner was afforded the opportunity to
dispute the reliability of the alcohol tests.
The final decision of the Pasco DUI
Program acknowledged the Petitioner’s submissions on appeal but found that the submissions
were inadequate to refute the indications of alcohol use, the two breathalyzer
readings, the positive mouth swab, and the detection of the odor of
alcohol. This competent, substantial
evidence supports the termination of Petitioner’s restricted license based on
alcohol use in violation of SSS Program requirements, and this Court cannot
reweigh the evidence to arrive at a different conclusion. See
Satter, 643 So. 2d at 695.
Accordingly,
it is
ORDERED AND ADJUDGED that the Petition for
Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers, at St. Petersburg,
Pinellas County, Florida, this ________th day of April 2010.
Original order
entered on April 16, 2010 by Circuit Judges Amy M. Williams, Peter Ramsberger,
and Pamela A.M. Campbell.
Copies
furnished to:
LARRY
SANDEFER, ESQUIRE Sandefer
& Murtha, P.A. 711
South Belcher Rd. Clearwater,
FL 33764-6326 Attorney
for Petitioner |
SUNCOAST
SAFETY COUNCIL 1145 Court
Street Clearwater,
FL 33756 PRIDE
INTEGRATED SERVICES, INC. OF
PASCO COUNTY |
HEATHER ROSE
CRAMER, ESQUIRE Assistant
General Counsel DHSMV - Legal
Office P.O. Box
540609 Lake Worth,
FL 33454-0609 Clearwater,
FL 33762 Attorney for
Respondent |
Council
Square Professional Office Center 7619
Little Road, Suite 350 New
Port Richey, FL 34654 |
[1]Petitioner’s driving record indicates that his license was revoked for ten years, from October 18, 2002, until October 17, 2012.
[2]Although due process does not require the SSS Program or DHSMV to advise a client of his right to have an attorney present, the Court is troubled that the “Client Rights/Appeal Process” form does not mention a client’s right to have an attorney present at the appeal hearing.
[3]Section 120.62(2), Florida Statutes, provides, “Any person compelled to appear, or who appears voluntarily, before . . . any agency proceeding has the right, as his or her own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives.” § 120.62(2), Fla. Stat. (2009).