DHSMV

v.

VOGT

Before POWELL, SHEA, THORPE, J.J.

PER CURIAM.

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI

Petitioner Jeremy Honis timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (Department) Final Order of License Suspension, sustaining the revocation of his driver’s license for a period of ten years pursuant to sections 322.24 and 322.28, Florida Statutes. This Court has jurisdiction pursuant to section 322.31, Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(C). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. On April 8, 2008, Petitioner was convicted for the offense of driving under the influence on January 18, 2008, and the county court suspended Petitioner’s license for a period of five years. On April 25, 2008, the Department issued an order of license revocation revoking Petitioner’s license for a period of ten years explaining that the conviction for the offense committed on January 18, 2008, was Petitioner’s third conviction for driving under the influence. Pursuant to section 322.271(1)(a), Florida Statutes, Petitioner requested and was granted a formal review hearing. On June 4, 2008, the hearing officer held a formal review hearing at which Petitioner was represented by counsel. At the hearing, Petitioner asserted that the Department did not have authority to impose a revocation period after the county court had done so. He also asserted that the offense of driving while ability impaired in New York was not the equivalent of driving under the influence in Florida; therefore, it could not support a revocation for ten years. On June 16, 2008, the hearing officer entered an order denying Petitioner’s motions and sustaining the revocation of his driver’s license for a period of ten years finding that no evidence was provided to prove that Petitioner was not charged with the offense that caused the suspension. Petitioner timely seeks certiorari review by this Court.

Petitioner asserts that pursuant to section 322.28, Florida Statutes, the Department was bound by the county court’s determination of the shorter revocation period. We disagree. See Dep’t of Highway Safety & Motor Vehicles v. Vogt, 489 So. 2d 1168 (Fla. 2d DCA 1986)(county court has no authority to make a determination, binding upon the Department, as to the number of a defendant’s prior convictions counted by the Department for the purpose of determining the length of his administrative driver’s license revocation).

We also reject Petitioner’s other argument, which is that the New York conviction for “driving while ability impaired” could not be counted as his third similar alcohol-related offense due to the differing levels of impairment and evidentiary blood-alcohol level presumptions. See DiPietro v. State, 992 So. 2d 880 (Fla. 2d DCA 2008)(petitioner’s two prior New York convictions for driving while ability impaired qualified as prior similar offenses for purpose of imposing the enhanced penalty for a third alcohol-related driving offense under Section 316.193(6), Florida Statutes); McAdam v. State, 648 So. 2d 1244 (Fla. 2d DCA 1995)(Colorado conviction for driving while ability impaired, even if based on a blood-alcohol level of greater than 0.05% and less than 0.10%, is sufficiently similar to a section 316.193(6), Florida Statutes, conviction to allow its use as a prior conviction). Accordingly, it is hereby ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED. DONE AND ORDERED at Orlando, Florida this __15___day _______February______,

2010.

____/S/_______________________

ROM W. POWELL Senior Judge

________/S/____________________ _____/S/______________________ TIM SHEA

JANET C. THORPE Circuit Judge

Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 15 day of February, 2010, to the following: William R. Ponall, Esquire, 1150 Louisiana Avenue, Suite 1, Winter Park, Florida 32790 and Jason Helfant, Assistant General Counsel, DHSMV-Legal Office, Post Office Box 540609, Lake Worth, Florida 33454-0609.

/S/

Judicial Assistant