NOTICE: THIS OPINION
IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF FILED, DETERMINED
Petition for Writ of Certiorari to
Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S
LICENSES – breath test instrument – Florida Statutes, section
316.1934(5)(a)-(e) – substantial compliance with statutory criteria – where the
breath test affidavit failed to disclose the date of the last maintenance of the
breath test instrument, the breath test affidavit is fatally defective –
nothing in the record to indicate that maintenance was performed on breath test
instrument as required by section 316.1934 - Petition granted. Falcone v. Dept. of Highway Safety and Motor Vehicles, No. 07-0011AP-88B
(
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
WILLIAM FALCONE,
Petitioner,
vs. Appeal No. 07-0011AP-88B
UCN522007AP000011XXXXCV
STATE OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
DIVISION OF DRIVER LICENSES,
Respondent.
____________________________________________/
Ramsberger and Williams, JJ;
Demers, J., Dissenting
THIS CAUSE came before
the Court on the Petition for Writ of Certiorari, the Response, and the
Reply. Upon
consideration of the same, the record and being otherwise fully advised, the
Court finds that the Petition must be granted as set forth below.
The
Petitioner, William Falcone (Falcone), seeks review of the Findings of Fact,
Conclusions of Law and Decision (Decision), entered February 6, 2007, in which the
Respondent, Department of Highway Safety and Motor Vehicles (Department),
sustained Falcone’s license revocation for driving under the influence of
alcohol. In reviewing the Decision and
the administrative action taken by the Department, this Court must determine
whether Falcone was afforded procedural due process, whether the essential
requirements of law were observed, and whether the Department’s findings and
judgment are supported by competent substantial evidence. See Vichich v. Department of
Highway Safety and Motor Vehicles, 799 So.2d 1069, 1073 (
The record shows that after a formal review hearing, the hearing officer made the following findings of fact:
On 01/01/07 Officer Origilio of the St. Petersburg Police Department made
contact with the driver of a motor vehicle who hit a sign, and was identified
by his
Counsel for Falcone moved to invalidate the
license suspension arguing that the Breath Test Result Affidavit and the Agency
Inspection Report did not comply with the requirements of Florida Statutes,
section 316.1934, as the documents did not show the date of the most recent
required maintenance of the breath test instrument. The hearing officer denied the motion and
sustained Falcone’s DUI license suspension.
Before this Court, Falcone
argues that the Department’s license suspension departs from the essential
requirements of law as there was no evidence presented that the breath test
machine had been maintained as required by law.
In reviewing this issue, the Court initially recognizes that the hearing
officer, as the fact finder, was charged with determining whether Falcone was
lawfully arrested for operating a motor vehicle with an unlawful breath alcohol
level. See Department
of Highway Safety and Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla.
5th DCA 1994). The hearing
officer could make this determination without witnesses testifying on behalf of
the Department and based on documents generated at the time of Falcone’s
arrest. See Satter, 643 So.2d at 695. The
stringent admissibility requirements in a criminal setting do not apply in an
administrative review hearing. See Department of Highway Safety and Motor Vehicles v.
Alliston, 813 So.2d 141, 145 (
The
majority finds that the breath test was not performed in substantial compliance
with approved methods. Florida Statutes,
section 316.1934(5)(a)-(e), lists several criteria
that must be met before a breath test affidavit is admissible without further
authentication and as presumptive proof of impairment. Section 316.1934(5)(e)
states that if a breath test instrument is used, the affidavit must disclose
“the date of performance of the most recent required maintenance on such instrument.”
(emphasis added). The plain and ordinary meaning
of the words used in this section clearly require that maintenance
activity be listed on the breath test affidavit. See e.g. Florida Dept. of
Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (
As the date of maintenance is not
listed on either the Breath Alcohol Test Affidavit or the Agency Inspection
Report, these documents are fatally defective and the hearing officer departed
from the essential requirements of law in considering them during the formal
review hearing. The majority finds support
for its decision in a series of cases addressing this issue. See Department of Highway Safety
and Motor Vehicles v. Cochran, 798 So.2d 761 (
In Cochran, the Fifth
District Court of Appeal concluded that a possible defect in the breath test
affidavit alone is not a basis to overturn a hearing officer’s findings which
support the license suspension. See
Cochran, 798 So.2d at 763. However, and of critical
importance, the Fifth District Court of Appeal specifically found that “an
additional document in the record, also submitted to the hearing officer – the
alcohol testing program form – indicates
the required maintenance was performed on the same day.” (emphasis added).
The record in this case is void of any indication that required maintenance was performed as mandated by statute. Hence, the majority concludes that the hearing officer departed from the essential requirements of law in relying on the Breath Alcohol Test Affidavit and the Agency Inspection Report in sustaining Falcone’s license suspension when there is no indication on these documents that required maintenance was performed on the breath test instrument.
Demers, J., Dissent
I must respectfully dissent. In this case, both the Breath Alcohol Test
Affidavit and the Agency Inspection Report provide the date of the last
inspection, 12/13/2006, showing that it was timely inspected less than one
month prior to Falcone’s breath test, on January 1, 2007. While there is not a separate maintenance
date listed in these documents, one could reasonably infer that the breath test
instrument did not need any required maintenance
at the time the instrument was inspected.
(emphasis added). Additionally, the Agency Inspection Report
states: “The above instrument complies .
. . with Chapter 11D-8, FAC,” the chapter of the Florida Administrative Code
that regulates the inspection and maintenance of breath testing instruments, indicating
that the breath test instrument was working properly and that the Department
substantially complied with applicable statutes and rules. See Dehart, supra.; Russell, supra.
Regardless,
as the Cochran case makes clear, the fact that there is a single defect
in the Breath Alcohol Test Affidavit and Agency Inspection Report does not
prevent the hearing officer from admitting these documents into evidence. See Cochran, supra.; Alliston, supra.
Cochran holds that it is the duty of this Court to address “the
issue of whether or not there was substantial evidence in the record to support
the hearing officer’s findings.”
In reaching this conclusion, it must be pointed out that there is no binding case law directly on point that answers the issue presented by this case, to wit: is the fact that there is no maintenance date, nor any direct indication that maintenance was performed on the breath test instrument, render the agency inspection report and breath test affidavit fatally defective? In the absence of such authority, I find that the hearing officer’s decision to sustain Falcone’s license suspension cannot be quashed as it appears that the Department substantially complied with the applicable rules and statutes and there is competent substantial evidence to support the hearing officer’s finding of DUI.
Therefore, it is,
ORDERED
AND ADJUDGED that the Petition for Writ of
Certiorari is granted and the Findings of Fact, Conclusions of Law and Decision
is quashed.
DONE
AND ORDERED in Chambers, at
______________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
_____________________________ _____________________________
PETER
RAMSBERGER AMY
M. WILLIAMS
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Melissa A. Loesch, Esquire
Jason Helfant, Assistant General Counsel
Dept. of Highway Safety & Motor Vehicles
Bureau of Administrative Reviews