DEPT. OF HIGHWAY SAFETY v. Pitts

• Decision Date: 02 May 2002
• Docket Number: No. 1D01-3196.,1D01-3196.
• Citation: 815 So.2d 738
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Victor Lee PITTS, Respondent.
• Court: Florida District Court of Appeals

815 So.2d 738

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Victor Lee PITTS, Respondent.

No. 1D01-3196.

District Court of Appeal of Florida, First District.

May 2, 2002.

Rehearing Denied May 31, 2002.

Enoch J. Whitney, General Counsel and Judson M. Chapman, Assistant General Counsel, Tallahassee, for Petitioner.

David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Respondent.

VAN NORTWICK, J.

By a petition for writ of certiorari, the Department of Highway Safety and Motor Vehicles seeks review of a decision of the circuit court which granted certiorari relief to Victor Lee Pitts. After finding that Pitts was not accorded procedural due process in the administrative hearing in which he challenged the suspension of his license for driving with an unlawful alcohol level, the circuit court granted the petition for writ of certiorari, quashed the final administrative order and reinstated Pitts' driving privilege. Because the circuit court's decision applied the correct law, we deny the Department's petition.

Factual and Procedural Background

On February 17, 2001, Deputy T.J. Brown of the Clay County Sheriff's Office was dispatched to a cul-de-sac at the end of Caleb Court, where he found Pitts standing by a car that was stuck in a ditch. Fire rescue personnel were already on the scene and advised Deputy Brown that they found Pitts in the car in the ditch. Deputy Brown, who is a DUI enforcement officer, smelled alcohol on Pitts' breath and asked Pitts if he had been drinking. Pitts answered "yes." Deputy Brown asked Pitts to undergo field sobriety tests and Pitts refused. Deputy Brown observed that Pitts' movements were slow and sluggish while he was in the ditch, but that once Pitts climbed out of the ditch, he was steady on his feet. The deputy reported that Pitts' face was pale, his eyes watery and slightly bloodshot, and his speech was "fair." Deputy Brown arrested Pitts. After the arrest, the deputy found a cooler of nonalcoholic beer in Pitts' vehicle. He subsequently admitted at the administrative hearing that non-alcoholic beer does have an odor similar to alcohol.

At the police station, a licensed intoxilyzer operator twice administered a breath test. The tests indicated that Pitts had an alcohol level of .134 and .125. Pitts' license was suspended for driving with an unlawful alcohol level. He requested a formal administrative hearing which was held before a hearing officer employed by the Department.

Prior to the hearing, Pitts obtained a subpoena duces tecum directing Deputy Brown to produce the videotape recording of the stop and arrest. At the hearing, Deputy Brown testified that he did not bring the videotape because he does not activate his recording device when the suspect refuses to perform the sobriety tests. Nonetheless, he acknowledged that even though he calls it a "no video" when a driver refuses to do the roadside tests, it was conceivable that a recording of his encounter with Pitts could exist. He testified that, if a video recording existed, it would appear on a tape turned in at approximately the same time as the Pitts arrest.

The hearing officer recognized that defense counsel was entitled to inquire concerning why the encounter was not videoed and, if a tape was available, that the tape should be produced. Nevertheless, the hearing officer ruled that, if counsel wanted to determine whether a videotape actually existed, counsel could attempt to locate the videotape. Counsel then attempted to question Deputy Brown concerning the identity of the arrest made closest to the Pitts arrest, so that counsel could locate the video of that arrest to determine if it contained all or part of the roadside encounter between Deputy Brown and Pitts. The hearing officer prevented this line of questioning, however, by requiring counsel to move on to another subject.

At another point in the hearing, Pitts' counsel questioned Deputy Brown about his decision not to inquire about what Pitts was drinking. Counsel asked the deputy whether it would have made a difference if Pitts had informed him he had been drinking non-alcoholic beer and had showed the deputy the cooler. The hearing officer interrupted and instructed the deputy not to answer the question because it was not relevant. Then, when counsel began to inquire of Deputy Brown concerning Pitts' appearance at the scene, the hearing officer stopped the examination, ruled that the questioning was irrelevant, and instructed counsel to "move on."

When counsel asked the deputy what he had intended when he described Mr. Pitts' speech as "fair" in his report, the deputy testified that he could not remember why he marked "fair." Later, the hearing officer pursued questioning on this subject, asking Deputy Brown if "fair" meant "it just wasn't sharp and crisp." The deputy responded "right." The hearing officer also asked the deputy about the condition of the accident scene, posing questions on evidence which had not been introduced, and established for the record that there were no obstructions at the location where Pitts ran off the road which would have prevented Pitts from successfully negotiating a turn within the cul-de-sac.

When the officer who administered the intoxilyzer was called, counsel for Pitts inquired about the circumstances surrounding the administration of the breath test, at one point inquiring how the officer had advised Mr. Pitts about implied consent. This questioning was stopped by the hearing officer, however, who informed counsel that such evidence would not be relevant because "this is a blow, not a refusal."

At the conclusion of the hearing, counsel moved to disqualify the hearing officer and the motion was denied.¹ Thereafter, the hearing officer entered a final order upholding the license suspension.

Pursuant to section 322.2615(13), Florida Statutes (2000), Pitts sought certiorari review in the circuit court. Before the circuit court, Pitts argued that he had the right to impeach Deputy Brown's determination of probable cause, to examine Deputy Brown on his basis for determining that probable cause existed, and to examine the intoxilyzer operator as to the information given Pitts about implied consent. See State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992)(breath test results which are obtained pursuant to the implied consent statute, but which are procured based on misinformation, are not voluntary and are not admissible). Pitts asserted that the hearing officer's curtailment of these rights was a denial of procedural due process and that the hearing officer's questioning had not been limited to clarifying evidence, but rather constituted an effort to elicit new evidence which supported the license suspension. He contended that the hearing officer abdicated her role as a neutral and impartial arbiter of the facts and, in effect, became an advocate for the Department.

In an opinion, the circuit court granted certiorari relief, reasoning, in part, as follows:

This court finds that the hearing officer did not adequately allow Petitioner's counsel to fully examine witnesses, and inappropriately advised witnesses not to answer questions by Petitioner's counsel in violation of Petitioner's procedural due process rights. During the hearing, the hearing officer frequently demanded Petitioner's counsel to "move on" despite the fact that counsel had not exhausted his questioning of witnesses on particular issues. The hearing officer's numerous interjections, and the barring of witness testimony by the hearing officer, denied Petitioner a fair and impartial hearing.

By interposing objections, and severely limiting the scope of direct examination of witnesses, the hearing officer did not leave an "impression of impartiality." Love v. State, 569 So.2d 807, 810 (Fla. 1st DCA 1990)("[a] judge must not only be impartial, he must leave the impression of impartiality upon all those who attend court."). The hearing officer over-extended herself as fact finder in extensively questioning witnesses, in addition to actually answering questions for the witnesses. Courts have recognized that "[e]xtensive participation of the trial judge, such as by excessive questioning of witnesses, may amount to usurping the functions of counsel and be an abuse of the discretion and latitude of the court in such respects, with resultant injury to the rights of a party ..." Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 169 So.2d 499, 501 (Fla. 3d DCA 1964). This court finds that the hearing officer below abused her discretion when she participated to the point of interposing objections to relevancy and instructing witnesses not to answer questions.

(Citations to the record omitted).

Section 322.2615, Florida Statutes

Under section 322.2615, Florida Statutes (2000), a law enforcement officer is required to take the driver's license of a person who has been arrested for violating section 316.193 for driving with an unlawful breath alcohol level and to issue that person a 30 day temporary permit. § 322.2615(1)(a), Fla. Stat. (2000). Thereafter, a notice of suspension issues informing the driver of his violation. § 322.2615(1)(b). Within five days after the arrest, the law enforcement officer is required to forward to the Department a copy of the notice of suspension; the driver's license of the person arrested; the report of the arrest, which includes an affidavit of the officer's grounds for believing that the person was driving under the influence of alcohol; the results of any breath or blood test or an affidavit stating that such test was requested but refused by the driver; and the officer's description of the driver's performance on a field sobriety test, if any. Id. The officer may also submit a copy of any videotape of the field sobriety test or the attempt to administer such test. § 322.2615(2). The person arrested may request an informal or formal review. § 322.2615(4)(5). If a formal review...