CHRISTIAN GULIANO

v.

DHSMV

from the Florida Department of Highway Safety and Motor Vehicles, Linda Labbe, Hearing Officer. Stuart I. Hyman, Esquire, for Petitioner. James K. Fisher, Assistant General Counsel, for Respondent.

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

PER CURIAM.

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

Petitioner Christian Guliano (Petitioner) 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 suspension of his driver’s license pursuant to section 322.2615, Florida Statutes. This Court has jurisdiction pursuant to sections 322.2615 and 322.31, Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(3).

On January 25, 2009, Deputy Danjou of the Orange County Sheriff’s Office conducted a traffic stop after observing a vehicle run a red light and fail to maintain a single lane of travel. Upon making contact with the driver, identified as Petitioner, Deputy Danjou observed that Petitioner’s eyes were bloodshot and glassy and his speech was slurred. Deputy Danjou also observed a strong odor of alcohol emitting from Petitioner’s breath. Petitioner agreed to perform field sobriety exercises. Based on Petitioner’s performance on the field sobriety exercises, Deputy Danjou arrested Petitioner and transported him to the breath testing facility. Petitioner agreed to submit to a breath test and gave breath-alcohol samples of .176 and .191. As a result, the Department suspended Petitioner’s driving privileges.

Pursuant to section 322.2615(6), Florida Statutes, Petitioner requested a formal review of his license suspension.

On February 20, 2009, the hearing officer held a formal review hearing at which Petitioner was represented by counsel. Petitioner moved to invalidate the license suspension on five grounds: (1) the hearing officer failed to issue subpoenas for Roger Skipper, Laura Barfield, Kelly Melville, and Jennifer Keegan; (2) the breath testing machine was not approved for use in the State of Florida; (3) no uniform method of administration for the breath test; (4) no probable cause to stop the vehicle; and (5) no probable cause for the arrest or reasonable suspicion to require field sobriety exercises.

On February 23, 2009, the hearing officer entered an order denying Petitioner’s motions and sustaining the suspension of his driver’s license finding that the law enforcement officer had probable cause to believe that Petitioner 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 he had an unlawful breathalcohol level of 0.08 or higher. The Court=s review of an administrative agency decision is governed by a three-part 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 cases where the individual=s license is suspended for an unlawful breath-alcohol level, “the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension.” ' 322.2615(7), Fla. Stat. (2007). 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 had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.

' 322.2615(7)(a), Fla. Stat. (2007).

At issue in the instant case is whether there was a departure from the essential requirements of the law in interpreting section 322.2615(6)(b) to prohibit the issuance of subpoenas for Kelly Melville, Roger Skipper, Laura Barfield, and Jennifer Keegan.

Petitioner argues that the failure to issue subpoenas violated his right to full discovery concerning the breath test machine upon which he was tested. He also asserts that the breath test results were inadmissible because the samples were obtained by using an unapproved and unreliable breath testing machine. Petitioner further asserts that the breath test results should have been excluded because the breath test regulations are insufficient due to the lack of a uniform method of administration.

With respect to Petitioner’s argument regarding the hearing officer’s failure to issue subpoenas, the Department concedes error. Following the briefing phase in this appeal, the Department filed a Motion to Abate and Remand requesting that this matter be remanded for issuance of subpoenas for the witnesses.

On August 9, 2009, this Court entered a Order Denying the Department’s Motion to Abate and Remand.

On the same day as Petitioner’s formal review hearing, the Second District issued a decision in Yankey v. Department of Highway Safety and 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).

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 Statutes, 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.” Yankey, 6 So. 3d at 637; see also §622.2615(2), Fla. Stat. The Second District acknowledged 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, 6 So. 3d at 637. Based on the statutory and administrative code provisions regarding the procedures to establish the validity of breath test results, the Second District 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.

We find the Yankey decision to be dispositive of the instant case. See Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978)(disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect that the time the judgment appealed was rendered). Like in Yankey, the hearing officer below refused to issue the subpoenas asserting that section 322.2615(6)(b), Florida Statutes, did not authorize her to do so. Based on the foregoing, the Court finds that the hearing officer was authorized under 322.2615(6)(b), Florida Statutes, to issue the subpoenas and the failure to do so constituted a departure 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 the Petition for Writ of Certiorari is GRANTED; the hearing officer’s Final Order of License Suspension is QUASHED; and this matter is REMANDED for further proceedings. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this ___8__ day of _______December______________, 2010.

_____/s/____ _________________

JANET C. THORPE

Circuit Judge

______/s/_ ____ ____________________

_____/s/_______________________ THOMAS B. SMITH

ALICE L. BLACKWELL Circuit 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, 1520 East Amelia Street, Orlando, Florida 32803 and James K. Fisher, Assistant General Counsel, DHSMV, 133 South Semoran Blvd., Orlando, Florida 32807, on the ___8_ day of_____December_______________, 2010.

______/s/__ __________________

Judicial Assistant