Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES - Due Process - Order Granting Petition for Writ of Certiorari Amended to correct scrivener’s errors.  Under the Matthews balancing test, the procedures employed by the hearing officer denied Petitioner procedural due process.  Arresting officer’s failure to appear for hearing, despite valid subpoena, denied the Petitioner opportunity to confront and cross-examine officer at the formal hearing within thirty days.  Hearing officer added a procedural step to review process by requiring Petitioner to pursue subpoena enforcement action pursuant to Fla. Stat. § 322.2615(6)(c).  Petition granted to the extent that Final Order is quashed and matter remanded for further proceedings.  Pfleger v. Florida Department of Highway Safety and Motor Vehicles, No. 10-000038AP-88B (Fla. 6th Cir. App. Ct. May 20, 2011).










                                                                                             Ref. No.:  10-000038AP-88B

v.                                                                                          UCN:  5220010AP000038XXXXCV



SAFETY AND MOTOR VEHICLES,                         





THIS CAUSE is before the Court on a Petition for Writ of Certiorari filed by Petitioner Marc Pfleger on August 30, 2010.  The Department of Highway Safety and Motor Vehicles (“DHSMV”) filed a response, to which Petitioner filed a reply.  Upon consideration, the Petition for Writ of Certiorari is hereby granted.

On May 29, 2010, in downtown St. Petersburg, Florida, Petitioner collided into the rear end of another car that was stopped at a traffic light behind a police vehicle operated by Officer Michael Morgan.  Officer Morgan drove behind the Petitioner’s car, conducted a crash investigation, and noted signs of impairment.  Officer Morgan called Officer Matthew Carter to conduct a DUI investigation.

Officer Carter arrived, read Petitioner Miranda warnings, and asked Petitioner to submit to field sobriety tests.  Petitioner refused to submit to field sobriety tests and invoked his right to an attorney.  According to Officer Carter, Petitioner exhibited signs of impairment, and after Petitioner’s refusal, Officer Carter arrested Petitioner for DUI.  The interaction between Officer Carter and Petitioner was recorded on video.  Officer Morgan transported Petitioner to the police station, Petitioner was read implied consent warnings, and he subsequently refused to provide a breath sample.  The DHSMV suspended Petitioner’s driver’s license.

Petitioner requested administrative review of his license suspension.  A hearing officer conducted an administrative hearing on January 26, 2010.  Although Petitioner served Officer Carter with a subpoena, Officer Carter failed to appear.  Petitioner moved to strike all the reports by Officer Carter entered into evidence based on his inability to cross-examine Officer Carter.  The hearing officer denied the motion and proceeded on the documents in evidence.  Petitioner moved for invalidation based on the arresting officer’s failure to appear and lack of probable cause to arrest for DUI without the officer’s testimony.  The hearing officer found that Officer Carter’s testimony was relevant to the proceeding, but he denied the motion for invalidation.  The hearing officer advised Petitioner that he would grant a continuance of the proceedings only to allow Petitioner to file an enforcement petition in the Circuit Court for Officer Carter’s subpoena.  Petitioner did not seek enforcement of the subpoena, and after the record was closed, the hearing officer upheld the license suspension.  Petitioner seeks review of the hearing officer’s Findings of Fact, Conclusions of Law and Decision.

            Petitioner argues that the hearing officer departed from the essential requirements of law by failing to set aside the license suspension upon Officer Carter’s failure to appear at the formal review hearing.  By Petitioner’s argument, he was denied the ability to confront and cross examine the arresting officer in violation of his due process rights and DHSMV rule 15A-6.013(5), which affords the driver seeking review “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.”  Fla. Admin. Code R. 15A-6.013(5).  Petitioner contends that the $400.00 cost of filing and action to enforce the petition and additional attorney’s fees creates an undue hardship, deprives the Petitioner of meaningful review, and denies him the remedy afforded under Florida Statutes § 322.2615(b).

            The DHSMV does not dispute that the subpoena was properly served on Officer Carter and that, for reasons unknown, Officer Carter failed to appear or show cause for his nonappearance.  Instead, the DHSMV responds that the hearing officer complied with Florida Statutes § 322.2615(7)(b) in the formal review hearing, and thus, the essential requirements of Florida law were followed.  The DHSMV cites to § 322.2615(6)(c), which provides that “[a] party may seek enforcement of a subpoena . . . by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides.”  § 322.2615(6)(c), Fla. Stat. (2010).  According to the DHSMV, Petitioner was granted a continuance and given the opportunity to seek enforcement of the subpoena in accordance with this procedure, and he was thereby afforded due process, even though he declined to avail himself of the procedures.

In reviewing the DHSMV’s final administrative order, this Court is limited to determining whether procedural due process has been accorded, whether the essential requirements of law have been observed, and whether the decision is supported by competent substantial evidence.  Vichich v. Dep’t of Highway Safety & Motor Vehicles, 799 So. 2d 1069, 1073 (Fla. 2d DCA 2001).  It is not the job or function of the circuit court to reweigh evidence and make findings when it undertakes a review of an administrative decision.  Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).  The hearing officer assigned to hear the case by the DHSMV 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).

“Procedural due process requires both fair notice and a real opportunity to be heard ... ‘at a meaningful time and in a meaningful manner.’”  Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); Dep’t of Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d 766, 771 (Fla. 2d DCA 2009).  The opportunity to be heard must be meaningful, full and fair, and not merely colorable or illusive.  Hofer, 5 So. 3d at 771 (citations omitted).  The determination of whether the procedures employed during a particular hearing provide a real opportunity to be heard depends on the factual context of each proceeding.  Id.

            A circuit court faced with a procedural due process challenge to an implied consent statutory scheme must employ the balancing test mandated by Matthews v. Eldridge, 424 U.S. 319 (1976).  Hofer, 5 So. 3d at 771. Therefore, this Court must examine:


First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, quoted in Hofer, 5 So. 3d at 771.

            It is well-settled that an individual’s driver’s license is a protectable property interest that cannot be taken away without the procedural due process required by the Fourteenth Amendment.  Id. (quoting Bell v. Burson, 402 U.S. 535, 539 (1971); Mackey v. Montrym, 443 U.S. 1, 10-11 (1979).  It is “a violation of basic principles of due process” if a hearing officer considers a document or report in a formal review hearing challenging the administrative suspension of a license but denies the driver the ability to meaningfully cross examine the individual who prepared those documents or reports.  Lee v. Dep’t of Highway Safety & Motor Vehicles, 3 So. 3d 754, 757 (Fla. 1st DCA 2009).  However, the Florida courts have made conflicting rulings concerning the interplay between the driver’s rights to a timely review hearing, to cross-examine witnesses, and to enforce witness subpoenas.  More particularly, the courts are divided as to what constitutes due process when a law enforcement officer fails to appear or bring materials to the hearing as commanded by a valid subpoena issued by the hearing officer.

            Some courts have interpreted § 322.2615(6)(c) as placing the burden on the requesting party to ensure and pursue compliance with its subpoena.  In Kubasak v. Dep’t of Highway Safety & Motor Vehicles, 957 So. 2d 15 (Fla. 5th DCA 2007), the court expressly stated that a respondent in an administrative driver’s license suspension proceeding is not relieved “from the necessity of complying with section 322.2615(6)(c), Florida Statutes (2005), when a subpoenaed witness has failed to appear.”  Id.  Therefore, when a properly subpoenaed witness fails to appear,[2] due process requires the hearing officer to continue the proceedings to enable the party to seek enforcement of the subpoena.  Ellis v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1153a (Fla. 4th Cir. Ct. Sept. 8, 2010) (citing Lee, 3 So. 3d at 757). 

            Several jurisdictions have adopted the DHSMV’s position that a Petitioner waives any due process claim where the hearing officer grants a continuance to the Petitioner to pursue an enforcement action pursuant to § 322.2615(6)(c) but he declines to do so.  See Pellecchia v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 991b (Fla. 12th Cir. Ct. May 24, 2010); Richardson v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 1069a (Fla. 4th Cir. Ct. App. Dec. 17, 2009); Cabello v. Dep’t of Highway Safety & Motor Vehicles, 16 Fla. L. Weekly Supp. 287a (Fla. 9th Cir. Ct. Nov. 3, 2008), and a line of cases following this decision; Maffett v. Dep’t of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 661a (Fla. 13th Cir. Ct. Feb. 7, 2008); Woessner v. Dep’t of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 546b (Fla. 17th Cir. Ct. March 29, 2005); cf. Dep’t of Highway Safety & Motor Vehicles v. Lankford, 956 So. 2d 527 (Fla. 1st DCA May 14, 2007).

             In cases cited by the Petitioner, Florida courts have made contrary rulings and found due process violations where the Sheriff’s Office improperly refused to accept service of a valid subpoena, notwithstanding the petitioner’s failure to seek enforcement pursuant to § 322.2615(6)(c).  See Cumberledge v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 314a (Fla. 9th Cir. Ct. Jan. 7, 2010); Curle v. Dep't of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 676a (Fla. 9th Cir. Ct. Jan. 17, 2006); Homer v. Dep't of Highway Safety & Motor Vehicles, 10 Fla. L. Weekly Supp. 275a (Fla. 4th Cir. Ct. March 20, 2003); Estraviz v. Dep't of Highway Safety & Motor Vehicles, 4 Fla. L. Weekly Supp. 813a (Fla. 4th Cir. Ct. July 15, 1997).  In Curle, the DHSMV raised the argument raised in this instance, that the petitioner was afforded due process by the hearing officer’s willingness to continue proceedings to give the petitioner an opportunity to enforce the subpoena.  The court rejected this argument, stating, “The fallacy of this argument is that both the Florida Statutes and the Rules entitle the driver to a meaningful formal review hearing within 30 days of his request of that hearing, unless waived by the driver.”  Curle, 13 Fla. L. Weekly Supp. at 676a (citing § 322.2615(6)(a), Fla. Stat. (2004); Fla. Admin. Code R. 15A-6.013(1); Estraviz, 4 Fla. L. Weekly at 813a; Satter, 643 So. 2d at 694 n.4).  The court found that the driver was entitled to cross-examine the subpoenaed deputy on the date of his formal review hearing rather than at a later date as suggested by the DHSMV.  Curle, 13 Fla. L. Weekly Supp. at 676a.

             The circuit court in Estraviz also found that the failure of law enforcement to accept service of a valid subpoena deprived the petitioner of a formal hearing within 30 days at which time he could confront the officers, as contemplated by the Rules.  The court in Estaviz focused on the duty of the DHSMV to comply with its own rules:


The Petitioner complied with the requirements of Rule 15A-6.012(3) and was entitled to have the presence of the officers at the hearing.  Just as the Respondent is entitled to strict compliance with these rules so is the Petitioner.  Especially when it involves the right to confront, cross examine witnesses and evidence offered to uphold the suspension. . . . The Respondent argues that they cannot help it if the Jacksonville Beach Police Department’s designated officer improperly refused to accept the subpoenas or did not know the procedures set forth in the Rule or the consequences of the Rule.  Surely, the Department would take the opposite position if the Petitioner did not properly subpoena their witnesses for hearing. . . .


In conclusion, the Petitioner complied with the  Rules and the Respondent must accept the consequences.  The Jacksonville Beach Police Department’s designated officer caused an error which was no fault of the Petitioner and it deprived the Petition of a hearing as contemplated within 30 days at which he could have confronted those officers.  There was no argument made that the Rules are not to be strictly complied with by both Petitioner and the Department.  The result of the non-compliance and the continuance imposed by the hearing officer resulted in a miscarriage of justice.


Estraviz, 4 Fla. L. Weekly at 813a (citation omitted).

            Upon consideration, the Court finds Curle and Estraviz persuasive, and under the Matthews balancing test, the procedures employed by the hearing officer in this instance denied Petitioner procedural due process.  There is no dispute that the Petitioner complied with the Rules and properly subpoenaed the Officer Carter to appear at the formal hearing.  The arresting officer’s unexcused, unexplained non-appearance[3] denied Petitioner the opportunity to confront and cross-examine him at the formal hearing within thirty days as contemplated by Department rules.  Counsel for the Petitioner moved for a continuance to confer with his client and affirmatively indicated a desire to cross-examine Officer Carter.    A review of the hearing transcript reveals that, although the hearing officer granted a continuance for the sole purpose of allowing Petitioner an opportunity to file an enforcement action, he effectively added a procedural step to the review process that deprived Petitioner the real opportunity to be heard and to challenge the suspension on the merits within thirty days.[4]  Particularly in the context of the Mathews factors, requiring a law enforcement officer to comply with valid subpoena to appear at a review hearing only serves the Government’s interest in regulating driver’s licenses in a manner consistent with its own Rules and due process.

            Accordingly, it is

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED to the extent that Final Order is quashed and the matter is remanded for further proceedings.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ________ day of May 2011.                                                                               



Original order entered on May 20, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.




Copies furnished to:


J. Armando Edmiston, Esquire

J. Armando Edmiston, P.A.

609 W. De Leon Street

Tampa, FL 33606

Attorney for Petitioner


Jason Helfant, Esquire

Assistant General Counsel

DHSMV - Legal Office

P.O. Box 540609

Lake Worth, FL 33454-0609

Attorney for Respondent

                [1]This Court’s Order of February 3, 2011, is amended to correct the scrivener’s errors such as the Petitioner’s first name and the Petitioner’s attorney’s name and address at the Certificate of Service, which also reflects a substitution of counsel for the DHSMV.  The Amended Order is substantively similar to the original Order.  

                [2]Florida Administrative Code Rule 15A-6.015 allows but does not mandate a properly subpoenaed witness who fails to appear at a hearing to submit a written statement showing just cause for such failure to appear.  Cabello, 16 Fla. L. Weekly Supp. 287a (citing Werle v. Dep't of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 664a (Fla. 9th Cir. Ct. Feb. 20, 2006)).


                [3]The court is perplexed as to why the hearing officer did not suspend the proceedings to afford Officer Carter an opportunity to show cause for his non-appearance.

                [4]Petitioner’s protestations about the financial burden of filing an enforcement action are unavailing, as Florida Statutes § 57.081 allows indigent litigants to proceed without prepayment of costs and filing fees.