RICHARD FOSTER

v.

DHSMV

Before THORPE, PERRY and T. SMITH, J.J.

PER CURIAM.

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

Petitioner Richard Foster timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (the Department) Final Order of License Suspension, sustaining the suspension of his driver’s license pursuant to section 322.2615, Florida Statutes. This Court has jurisdiction. §§ 322.2615, 322.31, Fla. Stat. (2006); Fla. R. App. P. 9.030(c)(3); 9.100. The facts are as follows based on the Final Order of License Suspension: Officer Gillespie observed Petitioner make an improper turn. Officer Gillespie further observed the following signs of impairment after making contact with Petitioner: a strong odor of alcohol, slurred speech, unsteady exit from vehicle, swayed while standing, and Petitioner admitted to drinking beer. Petitioner performed field sobriety exercises, wherein he demonstrated poor balance and trouble following directions. Officer Gillespie arrested Petitioner for DUI. Petitioner agreed to take a breath test; the results of the test were .136 and .123. Petitioner’s driving privilege was suspended for six (6) months for driving with an unlawful alcohol level.

Pursuant to section 322.2615, Florida Statutes, and chapter 15A-6, Florida Administrative Code, on November 15, 2006, Petitioner was granted a formal review, held by Department Hearing Officer Linda Labbe, during which Petitioner moved to invalidate the suspension of his driver’s license, wherein Petitioner argued: no probable cause for Petitioner’s stop and arrest; Petitioner’s breath test was illegally coerced and should be inadmissible; section 322.2615, Florida Statutes, is unconstitutional on its face and as applied to Petitioner; the breath test was scientifically unreliable; and the Department failed to prove by a preponderance of the evidence that Petitioner had an unlawful breath alcohol level.

On November 16, 2006, the hearing officer entered a Final Order of License Suspension, denying Petitioner’s motions and sustaining the suspension of his driver’s license.

The Court=s review of an administrative agency decision is governed by a threepart standard of review:¹) whether procedural due process was accorded; 2) whether the essential requirements of the law were observed; and 3) whether the decision was supported by competent, substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). “It is neither the function nor the prerogative of a circuit judge to reweigh evidence and make findings [of fact] when [undertaking] a review of a decision of an administrative forum.” Dep’t of Highway Safety & Motor Vehicles v. Allen, 539 So. 2d 20, 21 (Fla. 5th DCA 1989).

In a case where the individual=s license is suspended for refusal to submit to a breath, blood, or urine test, “the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain . . . the suspension.” ' 322.2615(7), Fla. Stat. (2006). The hearing officer=s scope of review is limited to the following issues:

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

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer. 3. Whether the person whose license was suspended 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 of¹ year or, in the case of a second or subsequent refusal, for a period of 18 months.

' 322.2615(7), Fla. Stat. (2006).

Petitioner asserts that:¹) the hearing officer deprived Petitioner of due process of law when the suspension of Petitioner’s driver’s license was not set aside due to the failure of the hearing officer to issue subpoenas for Kelly Melville, Roger Skipper, Tanya Shrum, and Laura Barfield to appear along with the documents requested in the subpoena duces tecum; 2) the breath test results obtained from Petitioner were not properly approved pursuant to F.D.L.E. Rule 11D-8.003 and provided scientifically unreliable results; 3) the breath test results in the instant case were illegally coerced by the use of an implied consent warning to require Petitioner to submit to a breath test; and 4) the hearing officer deprived Petitioner of procedural due process of law by failing to consider whether Petitioner was illegally stopped by the arresting officer. On the other hand, the Department contends that:¹) the Department established substantial compliance with FDLE rules to render Petitioner’s breath test results admissible; 2) Petitioner’s breath test was not illegally coerced; and 3) the hearing officer properly sustained the suspension of Petitioner’s license, pursuant to section 322.2615(7), Florida Statues, wherein there existed competent, substantial evidence.¹ Petitioner filed a reply to the Department’s response, wherein Petitioner reiterated his earlier arguments.

Subsequently, Petitioner filed a notice of supplemental authority, thus giving this Court notice of the Fifth District’s decision in Dep’t of Highway Safety and Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. 5th DCA 2008). The Department filed a second motion to abate the Petition for Writ of Certiorari and remand for further proceedings, wherein it conceded that the hearing officer failed to consider the lawfulness of Petitioner’s stop and arrest. Subsequently, Petitioner also filed a second notice of supplemental authority, citing State v. Atkins, et al., No. 48-2008-CT-673-E (Fla. Orange Cty. Ct. 2008).

Pursuant to Pelham, this Court finds that the hearing officer’s decision to sustain Petitioner’s license suspension departed from the essential requirements of the law, wherein the hearing officer declined to consider Petitioner’s arguments that the arrest was unlawful, although a lawful arrest is necessary to support an order for license suspension.

In light of this conclusion, this Court finds it unnecessary to address the additional arguments made by Petitioner and the Department.

Accordingly, it is hereby ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED and the hearing officer’s Final Order of License Suspension is QUASHED. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this __18th___ day of ______August_______________, 2009.

JANET C. THORPE

Circuit Judge

BELVIN PERRY, JR. THOMAS B. SMITH

Chief Judge

Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished via U.S. mail to Stuart I. Hyman, Esquire, Stuart I. Hyman, P.A., 1520 East Amelia Street, Orlando, Florida 32803 and Heather Rose Cramer, Assistant General Counsel, DHSMV-Legal Office, 6801 Lake Worth Road, #230, Lake Worth, FL 33467, on the __18th____ day of_____August________________, 2009.

Judicial Assistant