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 |
|