Fla. Dep't of Highway Safety v. Edgell-Gallowhur
| Decision Date | 01 May 2013 |
| Docket Number | No. 3D12-2313,Lower Tribunal No. 09-234,3D12-2313 |
| Parties | State of Florida Department of Highway Safety, etc., Petitioner, v. Stacy Edgell-Gallowhur, Respondent. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Marisa Tinkler-Mendez, Milton Hirsch, Monica Gordo, Judges.
Jason Helfant, for petitioner.
Michael Catalano, for respondent.
Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
The State of Florida, Department of Highway Safety and Motor Vehicles ("the Department"), petitions this Court for the issuance of a writ of certiorari, quashing a decision of the circuit court appellate division, which reversed the administrative suspension of Stacy Edgell-Gallowhur's ("Edgell-Gallowhur") driving privileges. Because we conclude that the circuit court departed from the essential requirements of law, we grant the petition and quash the order under review.
On February 24, 2009, at 2:50 a.m., Edgell-Gallowhur was stopped by the police for speeding. The police officer noticed a strong smell of alcohol emitting from Edgell-Gallowhur's breath and person, bloodshot eyes, and slurred speech, so he requested Edgell-Gallowhur perform certain roadside exercises. Edgell-Gallowhur complied, and at the conclusion of the exercises, was placed under arrest for driving under the influence. At the station, Edgell-Gallowhur refused to submit to a breath or urine test, having signed an implied consent form indicating he was made aware his driver's license would be suspended for his refusal to submit.
Thereafter, an administrative suspension of Edgell-Gallowhur's driving privileges was imposed for twelve months. Edgell-Gallowhur requested a formalhearing, which was held April 1, 2009. No witnesses testified at the hearing,1 but the relevant documents were presented at the hearing, including the speeding citation, which read 2 The hearing officer affirmed the order of suspension, concluding that the police officer had probable cause to believe Edgell-Gallowhur was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances, and that Edgell-Gallowhur refused to submit to tests after being told such refusal would result in suspension of his driver's license for twelve months.
Edgell-Gallowhur petitioned for a writ of certiorari to the circuit court appellate division, asserting, inter alia, the administrative order departed from the essential requirements of law because the evidence was insufficient to establish the initial stop was lawful; and the findings of the hearing officer were not supported by the record.
The Department moved to stay the petition for writ of certiorari pending the outcome of two cases pending in the Florida Supreme Court on the issue ofwhether it was necessary for the hearing officer to determine the lawfulness of the arrest (including the initial stop) of Edgell-Gallowhur. The motion was granted, and after the Florida Supreme Court ruled on the relevant case, Hernandez v. Department of Highway Safety & Motor Vehicles, 74 So. 3d 1070 (Fla. 2011), the Department filed a motion in the circuit court, acknowledging the supreme court in Hernandez determined "the issue of whether refusal [to submit to a breath test] was incident to a lawful arrest is within the allowable scope of review" of the hearing officer. Id. at 1080. The circuit court remanded the case back to the Department for the hearing officer to make a determination of the legality of the arrest (and therefore the initial stop) and stayed the certiorari proceedings pending that hearing.
On remand, the hearing officer held a second formal hearing and considered the same documents and evidence relied upon at the first formal hearing:
- The notice of suspension;
- Traffic citation number 5160-FWM (the speeding citation);
- Edgell-Gallowhur's driver's license;
- Arrest Affidavit of the arresting officer;
- Breath Alcohol Test Affidavit;
- Refusal Affidavit;
- Alcohol Influence Report;
- Implied Consent Form;
- Miranda Warnings; and
- Transcript of Edgell-Gallowhur's driving record.
At the second formal review, Edgell-Gallowhur again argued there was insufficient evidence to establish the lawfulness of the initial stop because the sworn arrest affidavit merely states Edgell-Gallowhur was "pulled over for speeding" and said nothing more about the manner in which the officer determined Edgell-Gallowhur was speeding. Further, Edgell-Gallowhur contended, the sworn arrest affidavit contained no reference to the speeding citation, so it was not incorporated into the allegations of the arrest affidavit. While Edgell-Gallowhur acknowledged a separate speeding citation had been issued and was before the hearing officer, he asserted that, because it was unsworn, it could not be considered competent evidence to determine the lawfulness of the initial stop.
The hearing officer issued an order finding, inter alia, that the initial stop of Edgell-Gallowhur (based upon the speeding citation) and his eventual arrest (for DUI) were lawful. The certiorari proceedings were then recommenced before the appellate division of the circuit court. At oral argument, Edgell-Gallowhur advanced the same arguments regarding the unsworn speeding citation and the failure to properly incorporate the speeding citation by reference into the sworn arrest affidavit. The circuit court issued a decision, reversing the administrativesuspension of Edgell-Gallowhur's driver's license. The panel determined that the hearing officer's decision to sustain Edgell-Gallowhur's driver's license suspension departed from the essential requirements of law because there was not sufficient competent evidence that the initial stop was lawful. The relevant portion of the circuit court's opinion reads as follows:
In the present case, the Officer merely states that [Edgell-Gallowhur] was pulled over for speeding. The Officer makes no mention of how he determined [Edgell-Gallowhur's] speed. The arrest affidavit refers to the DUI ticket and says nothing about the speeding ticket. Additionally, the speeding ticket on file does not say anything other than, Here, the Officer merely reaches a conclusion that the Petitioner was speeding without providing any evidence in his report to support his conclusion.
This petition for writ of certiorari followed.
The Department contends that the circuit court appellate division conducted an unauthorized de novo review of the evidence, reweighed the evidence, and failed to apply the correct law, resulting in manifest injustice which is likely to be repeated in every driver's license suspension where the officer pace clocks a vehicle to establish reasonable suspicion of speeding.
Edgell-Gallowhur asserts this court should decline to review this matter because the law is well-settled, and was followed by the circuit court appellate division.
On a petition for second-tier certiorari review, this court's "'inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,' or, as otherwise stated, departed from the essential requirements of law." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)). We recognize that "[a]s a case travels up the judicial ladder, review should consistently become narrower, not broader." Heggs, 658 So. 2d at 530.
Because our scope of review is very limited, the question presented in this case is whether the circuit court appellate division, in reversing the administrative suspension affirmed by the hearing officer, departed from the essential requirements of law. If we find, for example, that "the circuit court applie[d] an improper standard of review, 'this is tantamount to departing from the essential requirements of law.'" Dep't of Highway Safety & Motor Vehicles v. Kurdziel, 908 So. 2d 607, 608 (Fla. 2d DCA 2005) (quoting Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 845 (Fla. 2001)).
The circuit court, in its appellate capacity, was limited in its review to determining (1) whether the agency accorded procedural due process; (2) whetherthe agency observed the essential requirements of the law; and (3) whether the administrative findings and judgment are supported by competent substantial evidence." Heggs, 658 So. 2d at 530. Second-tier certiorari relief is also appropriate where the circuit court has failed to apply clearly-established law. Dep't of Highway Safety & Motor Vehicles v. Saxlehner, 96 So. 3d 1002 (Fla. 3d DCA 2012).
We conclude that the circuit court, in its decision reversing the administrative suspension, failed to apply the correct law by ignoring the speeding citation and its contents. In the singular paragraph explaining its decision, the circuit court panel determined:
(Emphasis added.)
The circuit court fails to explain what appear to be contradictions within the above statements; however, a review of the arguments made below provides the answer. Edgell-Gallowhur contended, at the two formal...
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