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).
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
MARC PFLEGER,
Petitioner,
Ref.
No.: 10-000038AP-88B
v.
UCN: 5220010AP000038XXXXCV
522010AP000038XXXXCV
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY AND MOTOR VEHICLES,
Respondent.
______________________________________/
AMENDED ORDER GRANTING
PETITION FOR WRIT OF CERTIORARI[1]
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)).