Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –the absence of the date on the notarization does not render the probable cause affidavit void- in the absence of any evidence to dispute that the affiant was fully and properly sworn before an authorized attesting officer, the affidavit is sufficient -verification on information or belief is permissible under section 322.2615(2)-.  Petition denied-Lewandowski v. State  Department of Highway Safety and Motor Vehicles, No:51-2004-CA-1674WS (Fla. 6th Cir. App. Ct. November 30, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

BARTOSZ LEWANDOWSKI,     

            Petitioner,

 

vs.                                                                   Appeal No: 51-2004-CA-1674WS

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,  

Respondent.

____________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response to Petition for Writ of Certiorari, and Reply to Response. Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The petitioner, Bartosz Lewandowski, seeks review of the Final Order of License Suspension, entered May 19, 2004, in which the hearing officer for the respondent, Department of Highway Safety and Motor Vehicles (Department), concluded that Lewandowski's driving privilege was properly suspended for a period of six months for driving under the influence (DUI).  In reviewing the Department’s order, this Court must determine (1) whether procedural due process had been accorded, (2) whether the essential requirements of law had been observed, and (3) whether the administrative findings and judgment were 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). 

            After being arrested for Driving Under the Influence, the petitioner requested a formal administrative review of his license suspension.  An evidentiary hearing was held.  There  was no live testimony at the hearing, only reports of the law enforcement officer. Having reviewed the reports, the hearing officer determined by a preponderance of the evidence that sufficient cause existed to sustain petitioner's suspension.  Petitioner claims that the Department departed from the essential requirements of law by failing to invalidate the petitioner's suspension because the documents submitted were not properly sworn giving the department jurisdiction.

            Petitioner argues that in order for the department to have jurisdiction to proceed with an administrative proceeding to suspend a person's driver's license, the department must first have a statement of probable cause under oath.  The petitioner cites to the holding in  State v. Johnston, 553 So. 2d 730 (Fla. 2d DCA 1989),  that "failure to furnish the Department of Highway Safety and Motor Vehicles with a statement of probable cause under oath fails to provide the department initial jurisdiction upon which it could proceed with any administrative action  to suspend a person's privilege to operate a motor vehicle." Petitioner argues that in this case, the arresting officer, Officer Trapnell, submitted two reports that are arguably probable cause statements, DDL 4 and DDL 5; however neither of them provided the department with jurisdiction. 

            First, Petitioner argues that DDL 4 [the Complaint Affidavit] is notarized but the document fails to indicate that at the time it was notarized, the officer was sworn.  Additionally, petitioner argues, the attestation by the officer is deficient because it states "under penalties of perjury I declare that I have read the foregoing and that the facts stated in it are true, to the best of my knowledge and belief."  State v. Rodgriguez, 523 So. 2d 1141 (Fla. 1988)(attestation clause stating "to the best of my knowledge and belief" is deficient.).   Petitioner also argues that DDL5 is deficient because it is not notarized or sworn to by someone authorized by statute.  Petitioner claims that since both documents are defective, there exists no probable cause document giving initial jurisdiction to the department to hold the administrative hearing.  This Court disagrees.

            As argued by respondent, the absence of the date on the notarization does not render the affidavit void. Even though an affidavit may be defective in complying with the technical requirements of Chapter 117, where there is no issue concerning the officer's identity or proof at the hearing, the defect is irrelevant. See DHSMV v. McGill, 616 So. 2d 1212 (Fla. 5th DCA 1993)(alleged defect had no substantive or evidentiary significance). Thus, the document is still an affidavit as contemplated by Fla. Stat. 322.2615.  

            Additionally, petitioner's argument that the attestation clause in the probable cause affidavit, particularly the language whereby the signing officer swears to "the best of [his] knowledge and belief," is deficient, is equally without merit.  This issue has already been decided by the Third District Court of Appeal in Padilla v. DHSMV, 629 So. 2d 180 (Fla. 3d DCA 1993).  In Padilla, the Court held that verification on information or belief is permissible under section 322.2615(2), Florida Statutes, where the statute authorized affidavit stating "officer's grounds for belief" that person arrested had violated section 316.193), rev. denied, 639 So.2d 980 (Fla.1994).[1]  Thus, the court held, "section 92.525 contemplates that an affidavit may include such language and may be recognized as properly verified on information or belief and be sufficient to subject affiant to the penalties of perjury." [2]  Id. at 181. [3]  Similarly, in this case, in the absence of any evidence to dispute that the affiant was fully and properly sworn before an authorized attesting officer, this Court finds the affidavit sufficient.

Therefore, it is,

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

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of November, 2005.

 

                                                                                    _______________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

                                                                                                                                                                                                                                                                                   

Copies furnished to:

Eilam Isaak, Esq.

Carlos J. Raurell, Esq.

                                                                       

 

           

 


[1] (1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner: (a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or (b) By the signing of the written declaration prescribed in subsection 2.
(2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing (document) and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words 'to the best of my knowledge and belief' may be added. (Emphasis added.) The written declaration shall be printed or typed at the end of, or immediately below, the document being verified and above the signature of the person making the declaration.
....
(4) As used in the section: ... (b) The term 'document' means any writing including, without limitation, any form, application, claim, notice, tax return, inventory, affidavit, pleading or paper; (c) The requirement that a document be verified means that the document must be signed or executed by a person and that the person must state, under oath, or affirm that the facts or matters stated or recited in the document are true, or words to that import or effect. (Emphasis added.)  Fla. Stat. 92.525

 

[2] The petitioner cites to State v. Rodriguez, 423 So. 2d 1141 (Fla. 1988), and its progeny; however, these cases deal with criminal trial court situations, and unlike Padilla, do not address administrative hearings governed by  Fla. Stat. 322. 2615.  As the Court stated in Padilla, "we are dealing with a substantive power of the legislature to make law.  Unquestionably, they have the power to determine what is considered an oath or verification.  The language here under consideration was no more than a verification, part and parcel, of the document."  Id. at 181.

 

[3]  It should be noted that the Florida Supreme Court denied review of Padilla  six years after the decision in  Rodriguez.  Padilla v. DHSMV, 629 So. 2d 180 (Fla. 3d DCA 1993), rev. denied, 639 So.2d 980 (Fla.1994).