ERIC S. CORDO

v.

DHSMV

PER CURIAM.

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI Eric S. Cordo (“Petitioner”) timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (“Department”) Final Order of License Suspension.

Pursuant to section 322.2615, Florida Statutes, the order sustained the suspension of his driver’s license for driving with an unlawful alcohol level. This Court has jurisdiction under sections 322.2615(13), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(3).

On November 4, 2006, Petitioner was placed under arrest for DUI and transported to the breath testing facility.

Petitioner submitted breath samples of .168 and .156. Petitioner’s driver’s license was suspended for driving with an unlawful blood alcohol level of .08 or higher. The Petitioner requested a formal review hearing pursuant to section 322.2615, Florida Statutes, and a hearing was held on December 12, 2006.

At the hearing, Petitioner moved to set aside the suspension arguing that his due process rights were violated when the hearing officer refused to issue a subpoena for Kelly Melville.

Additionally, Petitioner objected to any breath test maintenance documents being entered into evidence since he was not allowed to examine a critical witness.

On December 15, 2006, the hearing officer entered a Final Order of License Suspension denying the Petitioner’s motions and sustaining the suspension of his driver’s license. “The duty of the circuit court on a certiorari review of an administrative agency is limited to three components: Whether procedural due process was followed; whether there was a departure from the essential requirements of law; and whether the administrative findings and judgment were supported by competent substantial evidence.” Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So. 2d 692, 695 (Fla. 5th DCA 1994).

In a formal review of an administrative suspension, the burden of proof is on the State, through the Department. Where the driver’s license was suspended for driving with an unlawful blood alcohol level, the hearing officer must find that the following elements have been established by a preponderance of the evidence:

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 had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in § 316.193.

§ 322.2615(7)(a), Fla. Stat. (2006).

In the Petition for Writ of Certiorari, Petitioner argues that the hearing officer’s failure to issue a subpoena for Kelly Melville deprived Petitioner of procedural due process, that he was denied the appearance of an unbiased magistrate, that there was no lawfully submitted probable cause to believe that Petitioner was driving or in actual physical control of a vehicle while under the influence, and that a hearing conducted by a non-lawyer violates due process. Conversely, the Department argues that the hearing officer properly denied Petitioner’s request for subpoenas for persons not identified in the statute that provides the hearing officer the power to subpoena witnesses.

Additionally, the Department contends that the Department’s Order sustaining Petitioner’s suspension conforms to the essential requirements of the law and is supported by competent substantial evidence. Last, the Department notes that there is no requirement that the hearing officer be an attorney.

At issue in the instant case is whether the hearing officer departed from the essential requirements of the law in interpreting section 322.2615(6)(b) to prohibit the issuance of subpoenas for specific persons identified in the breath test result documents submitted by the Department. In a recent opinion, the Second District addressed this issue. Yankey v. Dep’t of Highway Safety & Motor Vehicles, 6 So. 3d 633 (Fla. 2d DCA 2009) (finding that when the department relies upon a document prepared by an agency inspector to properly validate the breath test results, section 322.2615, Florida Statutes, permits the driver to subpoena the inspector identified in that document). The Yankey decision is controlling authority on the subpoena issue in the instant case.

In Yankey, the petitioner filed a petition for writ of certiorari seeking to quash a circuit court order affirming the department’s suspension of her license for driving with an unlawful breath-alcohol level. Id. at 634. The petitioner asserted that the hearing officer and the circuit court departed from the essential requirements of the law in interpreting section 322.2615(6)(b), Florida Statutes, to prohibit the department’s issuance of a subpoena for the agency inspector responsible for testing the breath test machine and signing the agency inspection report. Id.

Pursuant to section 322.2615(6)(b), Florida Statues, a driver in a formal review hearing “may subpoena those witnesses who are identified in documents submitted by the arresting officer, which documents include the results of any breath test.” Id. at 637; see also § 322.2615(2), Fla. Stat.

The court noted that law enforcement had established a practice of routinely providing the department with a breath alcohol analysis report, a breath test affidavit, and an agency inspection report, in order to report the results of the breath test and support the license suspension. Yankey at 637. Based on the statutory and administrative code provisions regarding the procedures to establish the validity of breath test results, the court concluded that when an officer suspends a person’s license and “submits breath test results pursuant to section 322.2615(2) that include the breath alcohol analysis report, a breath test affidavit, and an agency inspection report, and those documents identify specific persons, the hearing officer is authorized under section 322.2615(6)(b) to issue a subpoena to any person ‘identified in’ those documents.” Id. at 638.

In the instant case, the Department entered the breath alcohol test affidavit, the agency inspection report, and the department inspection report into evidence. Prior to the hearing, the Petitioner requested that a subpoena be issued for a specific person identified in those documents submitted by the Department. Like Yankey, the hearing officer refused to issue the requested subpoena asserting that section 322.2615(6)(b), did not authorize the issuance of the subpoena.

Based on the holding in Yankey, the Court finds that the hearing officer was authorized under section 322.2615(6)(b), Florida Statues, to issue subpoenas to persons identified in the breath alcohol analysis report, the breath test affidavit, and the agency inspection report.

Thus, the hearing officer’s decision to deny the issuance of the subpoena departed from the essential requirements of the law.

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

Accordingly, it is hereby ORDERED AND ADJUDGED that Cordo’s 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, this __25th__ day of ____January_____________________, 2010.

_/S/___________________________ JANET C. THORPE Circuit Court Judge

_/S/__________________________ __/S/__________________________ BELVIN PERRY, JR. JOHN H. ADAMS, SR. Circuit Court Judge

Circuit Court Judge CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. mail or hand delivery to Donna P. Levine, Esq., Levine & Susaneck, P.A., 324 Datura St., Suite 145, West Palm Beach, FL 33401; and to Damaris E. Reynolds, Esq., Assistant General Counsel, Department of Highway Safety and Motor Vehicles, DHSMV-Legal Office, P.O. Box 540609, Lake Worth, FL 33454-0609, on this __26th____ day of ___January___________________, 2010.

__/S/___________________________

Judicial Assistant