State v. Baird
| Decision Date | 16 September 2015 |
| Docket Number | No. 3D15–1199.,3D15–1199. |
| Citation | 175 So.3d 363 |
| Parties | STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY, etc., Petitioner, v. Joseph S. BAIRD, Respondent. |
| Court | Florida District Court of Appeals |
Stephen D. Hurm, General Counsel, Department of Highway Safety and Motor Vehicles, and Natalia Costea, Assistant General Counsel, for petitioner.
Robertson & Hunter and Dustin S. Hunter, Key West, for respondent.
Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.
The Department of Highway Safety and Motor Vehicles (“DHS”) petitions for a writ of certiorari to quash the trial court's reversal of the suspension of Respondent Joseph S. Baird's driver's license. We grant the petition finding that the trial court, acting in its appellate capacity, applied the wrong law and substituted its judgment for that of the hearing officer. 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) ; Dep't of High. Saf. Motor Veh. v. DeGroot, 971 So.2d 237 (Fla. 2d DCA 2008).
Respondent was arrested for driving under the influence in October 2014 after driving 50 mph in a 30–mph zone. He requested a formal administrative hearing, but elected not to appear at the hearing. Several documents were admitted at the hearing, including the arrest report, a breath alcohol test affidavit, and an affidavit of refusal to submit to a breath, urine or blood test. The refusal affidavit states that Respondent refused to take a breath test at 3:40 a.m. The DUI check sheet reflects refusals at 3:41 a.m. and 3:52 a.m.
Two officers testified at the hearing. One officer testified that during the 20–minute observation period he asked Respondent if he would take a breath test and Respondent declined. In response to questions from Respondent's counsel the officer stated that he did not recall advising Respondent that the breath test was optional, but that it was possible. The officer testified that he asked Respondent to take the test “at least twice” and that Respondent “did say that he understood the consequences of refusing to provide the breath test and that he did refuse the breath test.”
At the close of the hearing, counsel argued that because Respondent was told that the breath test was “optional” it was implied that there was a “safe harbor” in refusing to take the test, so Respondent's refusal to take the test was not voluntary. Respondent also argued that the check sheet and affidavit were inconsistent and it was not clear if the refusal was before or after he was given warnings of the consequences of his refusal. According to the Hearing Officer's Findings of Fact and Conclusions of Law, at the end of the hearing, “Counsel requested Hearing Officer to review video” and “Hearing officer reviewed the video per Counsel's request.” The video of the discussion between the officer and Respondent regarding the breath test shows the following exchange:
The video shows that the officer then read Respondent that portion of his driver's license which notifies all Florida drivers that “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” Immediately thereafter the officer read Respondent that portion of the consent form which states “If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first time refusal, of eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood.” When the officer completed reading the form to Respondent, Respondent refused to take the breath test.
At the end of the 20–minute waiting period Respondent was again asked if he would take the breath test. After Respondent refused to take the breath test a second time, he was read his Miranda rights and no other conversations occurred.
The hearing officer sustained the suspension of Respondent's license and Respondent filed a petition for certiorari to the circuit court. In granting the petition the circuit court found:
[T]he language used by [the officer] informing [Respondent] that the breath test was optional created a ‘safe harbor’ of refusal for [Respondent.] ... [Respondent] believed the breath test was optional based on the statement of [the officer]. Although [Respondent] was read implied consent prior to declining the breath test, that was insufficient to erase the taint of the misinformation given to [Respondent] by [the officer].
The circuit court found that “[Respondent] believed the breath test was optional based on the statement of [the officer],” but there is no citation to what evidence supported that conclusion. The circuit court also found that there were “critical discrepancies with respect to the time of refusal within the documentary evidence.”
Finally, the circuit court found that without the evidence of the refusal, there was no competent substantial evidence to uphold the suspension. This Petition followed.
We agree with DHS that in reaching its conclusions the circuit court applied the wrong law and improperly reweighed the evidence. Controlling case law is clear that the circuit court was not permitted to scour the record for evidence which contradicted the hearing officer's conclusion. Dep't of High. Saf. & Motor Veh. v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001). In that case the circuit court reversed a suspension because the hearing officer had “improperly” found probable cause based on the “fellow officer rule.” In reversing the circuit court, the Second District stated:
Controlling law dictates that when a party is entitled as a matter of right to seek a circuit court's review of administrative action, the circuit court's inquiry is limited to three issues: (1) whether the agency furnished procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether the agency's findings and judgment are supported by competent substantial evidence.... We conclude the court failed in the latter regard in several ways. One of them derived from the court's focus on whether the hearing officer's application of the fellow officer rule was supported by his written finding that Deputy Cox had related to Deputy Watson the ‘circumstances surrounding the traffic stop.’ In its certiorari review of the suspension the circuit court was not called upon to assess whether the wording of a particular finding supported the result. Rather, as mentioned, the court was required to determine whether the hearing officer's findings and judgment were supported by competent substantial evidence. ... If the circuit court had observed the correct scope of review, it could not have found the hearing officer's order deficient in this regard. By basing its decision on matters outside the permissible scope of review, the court applied incorrect law.
Id. at 34–35, emphasis added.
Similarly in Department of Highway Safety & Motor Vehicles v. Wiggins, 151 So.3d 457 (Fla. 1st DCA 2014), rev. granted, Wiggins v. Department of Highway Safety & Motor Vehicles, No. SC14–2195, 2014 WL 7251666 (Fla. Dec. 17, 2014), a hearing officer issued a suspension order, but the circuit court reversed “after independently reviewing the [officer's car's] video” and holding “that the administrative order was flawed because the video contradicted the officer's testimony and report.” The circuit court “conceded” that the officer's testimony coupled with his report supported the factual findings of the hearing officer, but concluded that “neither the testimony of [the officer] nor the arrest and booking report constitute[d] competent substantial evidence on which the hearing officer could rely.” Id. at 461.
On appeal, the First District concluded that the circuit court had erred, stating:
The narrow but important issue presented is whether the circuit court, acting in its appellate capacity, erred by concluding that its independent review and assessment of events on a video of the traffic stop trumped the hearing officer's factual findings, which were based on the arresting officer's testimony and report. We hold that it did and grant the petition for certiorari.
Id. at 457. After finding that Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1275–76 (Fla.2001) constituted clearly established law, the First District also concluded that ” Id. at 463. In finding that the circuit court had erred, the court stated:
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