Petition for Writ of Certiorari to Review
Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Due process
– Sufficiency of evidence. Any error from
a hearing officer’s failure to notify petitioner of an option to have a urine
sample retested, was harmless error and did not deprive due process when the
petitioner’s defense to the positive urine test result was mistaken
ingestion. Hearing officers’ rejections
of the petitioner’s evidence on defense were reasonable; therefore, the
Appellate Panel will not substitute its judgment. Petition denied. Paul v. DHSMV, No.
08-000012AP-88B (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
MATTHEW PAUL APPEAL No.: 08-000012AP-88B
Petitioner, UCN522008AP000012XXXXCV
v.
STATE OF
OF HIGHWAY SAFETY AND MOTOR
VEHICLES,
Respondent.
_____________________________________/
ORDER DENYING
PETITION FOR WRIT OF CERTIORARI
THIS
CAUSE came before the Court on Petitioner’s 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 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 (
On January 18, 2005, Petitioner was convicted
of a third DUI offense within ten years.
Department imposed a ten year driver’s 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 Petitioner’s 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 Council’s decision to cancel his participation in the Supervision
Services. Thereafter, the Department cancelled his restricted driver’s 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 Petitioner’s 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 Petitioner’s 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
2515
Marc N. Pelletier, Esq.