Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension - Unless the DHSMV hearing officer’s ruling is clearly erroneous, the appellate court is to defer to the hearing officer’s interpretation of Florida Administrative Code (FAC) 11D-8.004(2).  That code section requires that prior to the use of “any evidentiary breath test instrument returned from an authorized repair facility”, the inspection of the instrument by the Department of Law Enforcement.  Inspection by FDLE at the authorized repair facility without subsequent inspection again at the local police department is a reasonable interpretation of the FAC requirements.  The Decision was not clearly erroneous.  Petition for writ of certiorari denied.  Torrence v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000027AP-88A (Fla. 6th Cir. App. Ct. May 14, 2012).

 

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

 

 

BRETT TORRENCE,

      Petitioner,                                                           Case No.: 11-000027AP-88A

                                                                                  UCN: 522011AP000027XXXXCV

 

 

v.

                                                                                 

 

 

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES,

      Respondent.             

 

______________________________________/

 

Opinion Filed May 14, 2012

 

Petition for Writ of Certiorari from

Decision of Hearing Officer

Bureau of Administrative Reviews

Department of Highway Safety

and Motor Vehicles

 

Eilam Isaak, Esq.

Attorney for Petitioner

 

Stephen D. Hurm, Gen. Counsel

Richard M. Coln, Asst. Gen. Counsel

Attorneys for Respondent

 

 

PER CURIAM.

          Brett Torrence seeks certiorari review of the "Findings of Fact, Conclusions of Law and Decision" of the Hearing Officer of the Bureau of Administrative Reviews, Department of Highway Safety and Motor Vehicles entered on April 26, 2011.  The Decision affirmed the order of suspension of Mr. Torrence's driving privileges.  Upon review of the Amended Petition for Writ of Certiorari, the Response, the Reply, and the appendices of the parties, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.  We affirm.

Statement of Case

          On November 6, 2010, Mr. Torrence was arrested by a St. Petersburg Police officer for driving while under the influence ("DUI") in violation of section 316.193, Florida Statutes (2010).  At the police station an Intoxilyzer 8000 breath test instrument was used and Mr. Torrence provided two breath samples which allegedly were above the legal limit of 0.08 percent.  A formal review was requested of the Florida Department of Highway Safety and Motor Vehicles.  Over a period of several months, three hearings were conducted.  After taking the matter under advisement, the hearing officer issued the Decision upholding the suspension of Mr. Torrence's driver's license. 

Standard of Review

          Circuit court certiorari review of an administrative agency decision is governed by a three-part standard: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.  State, Dep't of Highway Safety and Motor Vehicles v. Sarmiento, 989 So. 2d 692, 693 (Fla. 4th DCA 2008).

Analysis

          Evidence presented at the hearings demonstrated that the Intoxilyzer 8000 instrument, later used to test the alcohol level in Mr. Torrence's breath, at one time had been damaged.  The Intoxilyzer was sent to Lakeland, Florida, to Enforcement Electronics, a facility authorized by the Florida Department of Law Enforcement (FDLE) to make repairs.  On April 15, 2010, after the Intoxilyzer was repaired, the FDLE conducted an extensive test on the instrument in compliance with Florida Administrative Code section 11D-8.004(2) in Lakeland at the repair facility. 

          In his appendix, Mr. Torrence has included the "FDLE Department Inspector Field Notes" form dated April 15, 2010.  (App. 5)  In the section of the form for "Department Inspection" it is marked that the FDLE "Annual" inspection and FDLE "Inspection After Repair" were performed at the facility in Lakeland.  The section of the form for "Action" is marked that the Intoxilyzer "Complies with Chapter 11D-8, FAC," to "Return to Evidentiary Use," and to "Conduct an Agency Inspection Before Evidentiary Use."  In the section of the form for "Comments" there is a notation: "Instrument sealed by FDLE."  There is no direction or statement that the instrument is to be re-inspected by the FDLE before evidentiary use upon its return to the St. Petersburg Police Department.

          After the Intoxilyzer was delivered to the Police Department in St. Petersburg, the FDLE did not conduct another inspection.  However, in accordance with Florida Administrative Code section 11D-8.006(1), monthly inspections of the Intoxilyzer 8000 by an Agency Inspector[1] were conducted at the Police Department in St. Petersburg.  Evidence demonstrates that on October 21, 2010, the monthly agency inspection was completed in St. Petersburg before Mr. Torrence's breath-alcohol test was conducted on November 6, 2010.

          In the petition, there are no allegations that Mr. Torrence's due process rights were violated.  The only issue raised by Mr. Torrence relates to the hearing officer's denial of his motion to invalidate the suspension of his driver's license based on an argument that Mr. Torrence did not submit to an approved breath test because allegedly there had been a violation of Florida Administrative Code section 11D-8.004(2).  The Code section states:

          Registered breath test instruments shall be inspected by the [Florida] Department [of Law Enforcement] at least once each calendar year, and must be accessible to the Department for inspection.  Any evidentiary breath test instrument returned from an authorized repair facility shall be inspected by the Department prior to being placed in evidentiary use.  The inspection validates the instrument's approval for evidentiary use.

 

(Emphasis added). 

          Mr. Torrence argues that based on the clear and plain language of section 11D-8.004(2), upon its return to the St. Petersburg Police Department, the Intoxilyzer was required to have been inspected by an FDLE Inspector, not merely by an Agency Inspector.  He claims that the fact that the Intoxilyzer was inspected by the FDLE in Lakeland after repair, but not inspected by the FDLE in St. Petersburg after its return to the police department was insufficient.

          It is well established that courts should defer to a reasonable interpretation of a code section by an administrative agency.  See State, Dep't of Highway Safety and Motor Vehicles v. Abbey, 745 So .2d 1024, 1025 (Fla. 2d DCA 1999).  However, a reviewing court can overturn the agency's interpretation of a code section e if the interpretation is clearly erroneous.  See Sch. Dist. of Martin County v. Public Employees Relations Comm'n, 15 So. 3d 42, 44-45 (Fla. 4th DCA 2009).

          At the formal review hearing, Mr. Torrence presented the argument concerning the alleged requirement that the Intoxilyzer be inspected by the FDLE in St. Petersburg at the police department after it was delivered from the repair facility in Lakeland.  The hearing officer rejected this interpretation of code section 11D-8.004(2) and denied Mr. Torrence's motion to invalidate the suspension of his driver's license on that basis. 

          This Court concludes that the hearing officer's ruling that the Intoxilyzer breath-alcohol test results are valid is a reasonable interpretation of the code section by the administrative agency.  We defer to the hearing officer's interpretation as it is not clearly erroneous.  See Sch. Dist. of Martin County, 15 So. 3d at 44-45.  The essential requirements of law have been observed and the administrative findings and decision of the hearing officer are supported by competent substantial evidence.

          The Amended Petition for Writ of Certiorari is denied.

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 14th day of May, 2012.

 

Original order entered on May 14, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

 

Copies furnished to:

 

Timothy F. Sullivan, Esq.

9721 Executive Center Dr. North, Ste. 120

St. Petersburg, FL 33702

 

Stephen D. Hurm, Gen. Counsel

Richard M. Coln, Asst. Gen. Counsel

Dep't of Hwy. Safety & Motor Vehicles

P.O. Box 570066

Orlando, FL 32857


[1]   Florida Administrative Code section 11D-8.002(6) defines an "Agency Inspector" as "a person who has been issued an Agency Inspector permit by the Department [FDLE]."