Dhsmv v. Hofer

• Decision Date: 18 March 2009
• Docket Number: No. 2D07-5610.,2D07-5610.
• Citation: 5 So.3d 766
• Parties: DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. U.J. HOFER, Respondent.
• Court: Florida District Court of Appeals

5 So.3d 766

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. U.J. HOFER, Respondent.

No. 2D07-5610.

District Court of Appeal of Florida, Second District.

March 18, 2009.

Robin F. Lotane, General Counsel, Tallahassee, and Damaris E. Reynolds, Assistant General Counsel, Lake Worth, for Petitioner.

Harold M. Stevens of Harold M. Stevens, P.A., Fort Myers, for Respondent.

WALLACE, Judge.

The Department of Highway Safety and Motor Vehicles (the DHSMV) petitions this court for a writ of certiorari to review the circuit court orders that granted U.J. Hofer's petition for writ of certiorari and reinstated his driver's license. The circuit court quashed the administrative order issued by the DHSMV that suspended Mr. Hofer's driver's license following his arrest for driving under the influence (DUI). Because we conclude that the circuit court failed to apply the correct law when it decided that due process required that a hearing officer determine the legality of the initial stop in a postsuspension hearing authorized by section 322.2615, Florida Statutes (2006), we grant the petition and quash the circuit court's orders.

I. BACKGROUND

A. The Factual Background

On October 13, 2006, a Cape Coral police officer stopped Mr. Hofer for failing to dim his headlights. The police officer noticed signs that Mr. Hofer was under the influence of alcohol and asked him to perform field sobriety tests. Based on Mr. Hofer's performance on those tests, he was arrested for DUI. Mr. Hofer refused to submit to a breath test after the police officer read him the implied consent warnings. Mr. Hofer's driver's license was then suspended because he refused the breath test.

B. The Administrative Proceeding

Mr. Hofer exercised his right to formal review, see § 322.2615(1)(b)(3), Fla. Stat. (2006), and challenged the suspension of his license. At the hearing, Mr. Hofer attempted to challenge the legality of the initial stop. However, the hearing officer advised Mr. Hofer that issues concerning the legality of the stop were not within the scope of review authorized by section 322.2615(7)(b) unless the circumstances surrounding the stop indicated the driver's impairment.

In his written decision, the hearing officer found that a preponderance of the evidence established that (1) the arresting officer had probable cause to believe Mr. Hofer was driving under the influence, (2) Mr. Hofer refused to take the breath test after being requested to do so, and (3) Mr. Hofer was told that refusal would result in suspension. Consequently, the hearing officer sustained the suspension of Mr. Hofer's license for refusal to submit to a breath, blood, or urine test under section 322.2615.

C. Certiorari Review in the Circuit Court

Mr. Hofer challenged the hearing officer's written decision by petition for writ of certiorari in the circuit court. Mr. Hofer's petition argued that the administrative proceeding did not afford him procedural due process because, among other things, the hearing officer refused to consider the legality of the stop. Mr. Hofer noted that according to section 322.2615, in any implied consent case, the license suspension is based on a refusal to take a breath, blood, or urine test or on an alcohol level in excess of the legal limit. He also explained that the obligation to submit to a breath, blood, or urine test is imposed by section 316.1932, Florida Statutes (2006), which requires that any such test must be incident to a lawful arrest. Thus, Mr. Hofer concluded, the implied consent statutory scheme made a lawful arrest a necessary factor before a driver's license could be suspended and the hearing officer's refusal to consider the legality of Mr. Hofer's stop was "repugnant to any notion of due process."

The DHSMV's response contended that the legislature had authorized the hearing officer's actions. The DHSMV explained that the lawfulness of the arrest was within the scope of review authorized by section 322.2615(7)(b) before October 1, 2006. The legislature, however, specifically removed the consideration of the lawfulness of the arrest from the scope of review when it amended section 322.2615(7)(b). See ch. 2006-290, § 45, at 2957, 2960-61, Laws of Fla. The DHSMV also cited Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). In Conahan, the Fifth District found that section 322.2615, Florida Statutes (1991), afforded drivers procedural due process. Id. at 989-90. Thus the DHSMV argued that Mr. Hofer's due process argument failed because he had been given "notice and a hearing at which he was provided the opportunity to be, and in fact was, heard."

Before the circuit court ruled on his petition, Mr. Hofer filed a notice of supplemental authority calling the circuit court's attention to Failla v. State of Florida, Department of Highway Safety & Motor Vehicles, 14 Fla. L. Weekly Supp. 812a (Fla. 7th Cir. Ct. June 20, 2007), cert. denied, No. 5D07-2738 (Fla. 5th DCA May 23, 2008). In Failla, the Volusia County Circuit Court held that "[i]f a hearing officer is to uphold a license suspension, due process requires a finding that the refusal to submit to a breath test was incidental to a lawful arrest." Id. at 813.

Here, the circuit court agreed with the reasoning in Failla. Accordingly, the circuit court found that the "[h]earing [o]fficer departed from the essential requirements of [the] law when he failed to determine whether the stop and the arrest [of Mr. Hofer] were lawful." Hofer v. State of Fla., Dep't of Highway Safety & Motor Vehicles, 15 Fla. L. Weekly Supp. 48a (Fla. 20th Cir.Ct. Aug. 14, 2007). Based on this conclusion, the circuit court granted the petition and quashed the hearing officer's decision. The circuit court subsequently denied the DHSMV's motion for rehearing and ordered the DHSMV to reinstate Mr. Hofer's license. The DHSMV seeks certiorari review of the order granting Mr. Hofer's petition and of the order denying the DHSMV's motion for rehearing.

II. STANDARD OF REVIEW

The DHSMV may petition for a writ of certiorari to review a circuit court appellate decision reversing an administrative order sustaining the suspension of a driver's license. Dep't of Highway Safety & Motor Vehicles v. Rosenthal, 908 So.2d 602, 604 (Fla. 2d DCA 2005). We may grant the DHSMV's petition for second-tier certiorari if the circuit court (1) did not afford procedural due process or (2) failed to apply the correct law. Dep't of Highway Safety Motor Vehicles v. DeGroot, 971 So.2d 237, 239 (Fla. 2d DCA 2008). This two-part analysis allows this court to "decid[e] whether the lower court `departed from the essential requirements of [the] law.'" Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995)). "A ruling constitutes a departure from the essential requirements of [the] law when it amounts to `a violation of a clearly established principle of law resulting in a miscarriage of justice.'" Id. (quoting Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)); see State v. Farino, 915 So.2d 685, 686 (Fla. 2d DCA 2005) (explaining that failure to apply the correct law must result in a miscarriage of justice to warrant the issuance of a writ of certiorari).

III. PRELIMINARY CONSIDERATIONS

The DHSMV's petition for second-tier certiorari contends that the circuit court departed from the essential requirements of the law because the lawfulness of the stop and arrest of a driver is not within the scope of review in a postsuspension hearing under section 322.2615(7)(b). Specifically, the DHSMV contends that the circuit court applied the incorrect law when it found that due process required that the hearing officer consider the lawfulness of the stop. The DHSMV has not claimed that the circuit court's decision deprived it of procedural due process. Consequently, this court may not grant relief unless the circuit court departed from the essential requirements of the law with a resulting miscarriage of justice. See Dep't of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA 2002).

IV. THE CIRCUIT COURT'S DUE PROCESS ANALYSIS

A. Essential Requirements of the Law

The circuit court departed from the essential requirements of the law in reaching its conclusion that the hearing officer had to consider the legality of the arrest in an administrative proceeding under section 322.2615. The crux of Mr. Hofer's petition for certiorari was that the administrative proceeding did not afford him procedural due process because he could not challenge the legality of the stop. The United States Supreme Court has explained that driver's "licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). "Procedural due process imposes constraints on governmental decisions that deprive individuals of liberty or property interests," Massey v. Charlotte County, 842 So.2d 142, 146 (Fla. 2d DCA 2003), including state efforts to legislate the suspension of driver's licenses, Bell, 402 U.S. at 539, 91 S.Ct. 1586. In Bell, the United States Supreme Court has expressly ruled:

Once [driver's] licenses are issued ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a "right" or a "privilege."

402 U.S. at 539, 91 S.Ct. 1586 (citations omitted); see Mackey v. Montrym, 443 U.S. 1, 10-19, 99 S.Ct. 2612, 61 L.Ed.2d 321 (...