DEPARTMENT OF HIGHWAY SAFETY v. Currier, 1D02-42.

• Decision Date: 20 August 2002
• Docket Number: No. 1D02-42.,1D02-42.
• Citation: 824 So.2d 966
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Candace CURRIER, Respondent.
• Court: Florida District Court of Appeals

824 So.2d 966

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Candace CURRIER, Respondent.

No. 1D02-42.

District Court of Appeal of Florida, First District.

August 20, 2002.

Enoch J. Whitney, General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.

No appearance for Respondent.

ERVIN, J.

The Department of Highway Safety and Motor Vehicles seeks common law certiorari review of the circuit court's order granting a writ of certiorari to respondent Candace Currier and reinstating her driver's license, which had been suspended after she refused to take a breath test following arrest for driving under the influence. Because we conclude that the circuit court failed to apply the correct law with respect to its review of the suspension order issued by the Department's hearing officer (HO), we grant the petition and quash the circuit court's order.

In that agencies are given powers only explicitly delegated to them by the legislature, or reasonably implied therefrom, the circuit court, in exercising its certiorari review over an administrative order, must necessarily be cognizant of the authority conferred on an HO in a license-suspension hearing. Section 322.2615(7), Florida Statutes (2001), directs the HO to determine whether a preponderance of the evidence supports the license suspension based upon the following issues:

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.

2. Whether the person was placed under lawful arrest for a violation of s. 316.193.

3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

4. Whether the person 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.

As applied to the instant case, the critical question for resolution before the HO was whether the arresting officer had probable cause to believe Currier had been driving while under the influence.¹

In issuing the writ of certiorari, the court ruled as follows:

The record is devoid of any competent substantial evidence that the petitioner was driving. The "fellow officer" rule does not apply to the facts and circumstances in this case. The finding of the hearing officer that an unidentified witness told Officer DiFranza that the petitioner was the driver of the car in the hit and run accident was based on either no evidence or inadmissible hearsay. The hearing officer departed from the essential requirements of law by sustaining the suspension in the absence of any competent substantial evidence that the petitioner was the driver.

By so deciding, the circuit court failed to take into consideration its limited review powers over the HO's suspension order. As we observed in Department of Highway Safety & Motor Vehicles v. Favino, 667 So.2d 305 (Fla. 1st DCA 1995), in reviewing an administrative order by certiorari, the circuit court must determine (1) whether the agency accorded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether the administrative findings and judgment are supported by competent substantial evidence (CSE).

Our certiorari review power over the circuit court's order is limited to deciding whether the circuit court afforded procedural due process and applied the correct law. Id. at 308. It is apparent from our examination of the record that the circuit court's rejection of the Department's suspension order for the reason that no CSE had been presented that Currier was the driver of the automobile was based on an incorrect application of the law.

In our judgment, the lower court misapplied the law by failing to take into proper account the evidence submitted at the hearing which the HO was required by law to consider in resolving such issue, specifically the arrest report and the field sobriety report, which were offered into evidence without objection. This evidence was appropriately admitted pursuant to section 322.2615(2), which directs an arresting officer to submit various documents to the Department, and section 322.2615(11), which permits "[t]he formal review hearing [to] be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including...