Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Hearing officer must consider the lawfulness of a license suspension, including the appropriate length of suspension, to sustain it under Fla. Stat. § 322.2615(7). Record evidence was insufficient to establish a prior refusal that would warrant the enhanced suspension.  Hearing officer departed from the essential requirements of law by refusing to consider the length of the suspension, and the decision to sustain the suspension was not supported by competent substantial evidence.  Petition granted.  Kelsey v. Department of Highway Safety and Motor Vehicles, No. 11-000026AP-88B (Fla. 6th Cir. App. Ct. October 31, 2011).

 

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

 

WILLIAM KELSEY,

            Petitioner,

Ref. No.: 11-000026AP-88B

v.                                                                                             UCN: 5220011AP000026XXXXCV

 

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES,

            Respondent.

____________________________________/

 

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by the Petitioner, William Kelsey, on May 10, 2011. The Respondent, the Department of Highway Safety and Motor Vehicles (“Department”), filed a response in opposition, to which Petitioner filed a reply.  For the reasons set forth below, the petition is hereby granted.

On January 26, 2011, Petitioner was involved in a motor vehicle accident in St. Petersburg, Florida. St. Petersburg Police Officer Kenneth Pienik made contact with the Petitioner, conducted field sobriety tests on Petitioner, and then arrested him for DUI. Officer Pienik transported Petitioner to St. Petersburg Police Department Headquarters to conduct the breath test. Petitioner refused to submit to the breath test, so Officer Pienik read the Petitioner the implied consent warnings.

Specifically, Officer Pienik advised Petitioner that if he refused to submit to such test, his privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months. Officer Pienik stated in his Supplemental Report:

Kelsey had a prior refusal to provide a breath sample on 01/19/1990. Kelsey also had a prior D.U.I. conviction on 01/19/1990. I completed the VIPAR affidavit for the D.U.I. as well as the refusal to Submit to Testing and D.U.I. citation.

 

Officer Pienik also filed an Affidavit of Refusal to Submit to Breath Urine, or Blood Test.  The Department suspended Petitioner's driver's license for 18 months for twice refusing to submit to a breath test pursuant to Florida Statutes § 322.2615.

Petitioner challenged the suspension, and an administrative hearing was conducted on March 31, 2011. Counsel for the Petitioner introduced into evidence an illegible copy of the 1990 traffic citation that the Department used as a predicate for the lengthier suspension.  Counsel argued that the citation was insufficient to establish a prior refusal. Citing to Morefield v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 285a (Fla. 9th Cir. Ct. Oct. 10, 2008), counsel moved to invalidate the license suspension based on the lack of competent substantial evidence, such as Petitioner’s driver’s license history, to support the enhanced length of suspension.

In his administrative order of April 11, 2011, the hearing officer denied the motion and sustained Petitioner’s driver’s license suspension, finding “this request by counsel to be outside the scope of this review” and that he lacked “the authority to change the record.” Petitioner brings the instant Petition for Writ of Certiorari challenging the hearing officer’s decision.

In reviewing the administrative decision, this Court is limited to determining (1) whether procedural due process has been accorded, (2) whether the essential requirements of law have been met and (3) whether the administrative hearing officer’s 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).  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).  On review, the Circuit Court is not entitled to reweigh the evidence; it may only determine whether competent substantial evidence supports the hearing officer’s findings. Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006).

As recognized by the hearing officer, Florida Statutes section 322.2615 limits the scope of review to the following issues:

     1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

     2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

     3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

 

Fla. Stat. § 322.2615(7)(b). The Department argues that this statutorily limited scope prohibits the hearing officer or the court from considering as an additional element whether the Petitioner had a prior refusal on his driving record. 

            The Department indicates that its staff in Tallahassee reviews the driver’s record and makes the determination of the length of suspension, and it is outside the hearing officer’s scope of review authorized by § 322.2615. Contrary to the Department’s suggestion, however, subsection (7) commands that “the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.”  Fla. Stat. § 322.2615(7).  “Under the statutory scheme, the lawfulness of the suspension is central to any determination that there is ‘sufficient cause’ to ‘sustain’ it.” Dep’t of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 343, 307-08 (Fla. 5th DCA 2008), review denied, 984 So. 2d 519 (Fla. 2008), cited in Dep’t of Highway Safety & Motor Vehicles v. Hernandez, --- So. 3d ---, 2011 WL 222479, at *5-6 (Fla. June 9, 2011). To disallow the hearing officer to consider the appropriate length of suspension would deny the Petitioner meaningful process to challenge the Department’s initial determination that he has a prior refusal.

            In order to sustain an enhanced suspension, the record must contain proof of the petitioner’s predicate prior refusal, such as his driving record. Petitioner cites to several cases in which the Ninth Circuit held that the failure to include the petitioner’s driving history into the record constitutes a lack of competent substantial evidence to support an enhanced 18-month suspension. Morefield v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 285a (Fla. 9th Cir. Ct. Oct. 10, 2008); Carder v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 547a (Fla. 9th Cir. Ct. Sept. 4, 2007); Roddy v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 13a (Fla. 9th Cir. Ct. Aug. 3, 2007); Boston v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 909a (Fla. 9th Cir. Ct. Apr. 27, 2005). Cases from other jurisdictions support this construction of § 322.2615. See also Randolph v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 12a (Fla. 15th Cir. Ct. 2009); Keiser v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 324a (Fla. 13th Cir. Ct. 2005); Keyes v. Dep’t of Highway Safety & Motor Vehicles, 1 Fla. L. Weekly Supp. 266a (Fla. 20th Cir. Ct. June 2, 1992) (hearing officer properly considered Petitioner’s driving record and prior refusal in 1978 for purposes of imposing a lengthier suspension).

            In this instance, the only record indications of a prior refusal are Officer Pienik’s reports and Petitioner’s DUI uniform traffic citation from 1990.  Alone this evidence is insufficient to establish a prior refusal that would warrant the enhanced suspension.  The hearing officer departed from the essential requirements of law by refusing to consider the length of the suspension, and the record lacks competent substantial evidence to support the hearing officer’s decision to sustain the enhanced suspension.

Accordingly, it is hereby

            ORDERED AND ADJUGED that the Petition for Writ of Certiorari is GRANTED.

            DONE AND ORDERED in St. Petersburg, Pinellas County, Florida, on October ______, 2011.

 

Original order entered on October 31, 2011, by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

Copies furnished to:

 

Eilam Isaak, Esquire

306 East Tyler Street, 2nd Floor

Tampa, FL 33602

Attorney for Petitioner

 

Richard M. Coln, Esquire

Assistant General Counsel

DHSMV

P.O. Box 570066

Orlando, FL 32857